1. These Writ Petitions are filed seeking police assistance to remove “Foreign Import Containers†owned by the respective petitioners, bonded
with the Customs Department and lying in the Container Yard owned by the 4th respondent at Binanipuram, Ernakulam.
2. W.P.(C) No.34460 of 2019 is filed by Maersk Line India Limited, a company incorporated under the Companies Act and acting as the steamer
agent in India of Maersk Line A/S. They state that they are the owners of about 246 containers, the details of which are mentioned in the list
produced as Exhibit P1 in the writ petition and lying in the Container Freight Station (CFS).
3. W.P.(C) No.1366 of 2020 is filed by Star Shipping Services (India) Pvt. Limited, a company incorporated under the Companies Act and acting as
the steamer agent in India of M/s Gold Line Shipping Company, a company headquartered in Hong Kong. It is asserted in the writ petition that about 4
containers owned by the petitioner are lying in the CFS.
4. As the issues raised in both the matters are interrelated, both these writ petitions are taken up and disposed of by a common judgment. For the sake
of clarity and convenience, reference to parties and Exhibits shall be as detailed in W.P. (C) No.34460/2019.
5. M/s.Periyar Chemicals Pvt Limited, the 4th respondent herein, is the owner in title and possession of 8 acres of land in Sy.Nos.
59/4,59/7,61/2,61/1B, 59/1-2, 59/5-2, 64/1-2 of Kadungallur Village. In the year 2010, the Office of the Commissioner of Customs granted them
permission to operate a container yard in the said property. Later, by Exhibit R4(b) communication, the 4th respondent was permitted to set up a CFS.
6. The 5th respondent, OPAL Asia India Ltd., is a company incorporated under the Companies Act, 1956 and is engaged in the business of stocking
and repairing of shipping containers. On 4/4/2014, the 4th respondent entered into a license agreement with the 5th respondent and took on license
basis, the CFS facility covered under Exhibit R4(a). The license period was 11 months and was being renewed continuously until it was finally
renewed on 1/12/2017. The term of the license was due to expire only on 30/10/2018. A dispute resolution clause was incorporated in the agreement
which provided for recourse to arbitration in case of difference of opinion between the contracting parties. Disputes arose between the respondents 4
and 5 which led the 5th respondent to approach the District Court, Ernakulam with Ext.P7 application under Section 9 of the Arbitration and
Conciliation Act, 1996 on 20.12.2018 as CMA (Arb) 1243/2018. In Ext.P8 affidavit, which was filed along with the application under Section 9, it is
seen stated by the applicant, the 4th respondent herein, that at the time of filing of the application, approximately 3000 containers are lying in the
petition schedule property/stockyard. It is also stated that the 4th respondent is on the verge of winding up its activities in the premises and they are
attempting to remove the containers from the petition schedule property and thereby cause monetary loss to the licensor. The prayer was to interdict
the 4th respondent from removing the containers lying in the property and stored by the 4th respondent. The District Court passed an order as prayed
for.
7. While so, MSC agency (India) Private Ltd., the agent of MSC Mediterranean Shipping Company, approached the District Court with an application
seeking to implead themselves. They also sought for vacating the interim order passed by the Court contending that about 5 containers belonging to
them were lying in the property of the 5th respondent. Their prayer was to permit them to take possession of the said containers and to remove them.
8. The District Court, after evaluating the contentions, took the view that Section 9 of the Arbitration and Conciliation Act contemplated issuance of
interim measures by the Court only at the instance of the party to an arbitration agreement with regard to the subject matter of the arbitration
agreement and that it can be only against the party to an arbitration agreement or any person claiming under him. Holding that the balance of
convenience was in favor of the agency, the 5th respondent was held not entitled to exercise any right of lien over the containers. The injunction was
vacated by Ext.P4 order dated 9/4/2019 and MSC agency was permitted to take possession of and remove the containers from the property of the 5th
respondent. When obstruction was caused by the 4th respondent, MSC Agency approached the District Court seeking police aid to remove the
containers and by Ext.P5 order dated 17.6.2019, the Sub-Inspector of Police, Binanipuram Police Station was ordered to provide effective police
protection to Court Amin for implementing the order of the Court and to enable the agency to remove the containers.
9. It appears that immediately thereafter, a memo was filed by the 4th respondent seeking to withdraw the application and by Ext.P3 order, the
application was dismissed as not pressed and the blanket interim order granted in the Section 9 application was vacated.
10. The petitioners state that with the withdrawal of CMA (Arb) No. 1243/2018, there are no Court orders restraining the removal of the containers
and in the said circumstances, they proceeded to remove the containers from the stockyard. They contend that they were physically obstructed by the
4th respondent and their men. In the said circumstances, they lodged Ext.P6 complaint before the 3rd respondent seeking intervention. Their grievance
is that no assistance was granted by the police to remove the containers. According to the petitioners, they had parked the containers in the CFS
facility on the strength of a valid agreement between the petitioners and the 5th respondent and that being the case, the 4th respondent will have no
legal authority to obstruct the petitioners from removing the same for the purpose of re-export. It is further contended that as in the case of MSC
Agency, which were permitted to remove the containers by the District Court, when the petitioners attempted to approach the Court, the 4th
respondent withdrew the application filed under Section 9 to prevent the Court from granting similar relief to the petitioners. It is urged that on the
strength of notification No.104/94-Cus dated 16.3.1994, customs duty exemption was granted to the containers on condition of re-export of the
containers within 6 months from the date of importation. The said period has long expired, and it is based on a request made by the petitioners that the
Assistant Collector has extended the period. Now the additional 7th respondent, for and on behalf of the 6th respondent, has issued a letter directing
the petitioners to take out all containers lying in the yard with the assistance of the Kerala Police Personnel and assistance was also offered for
removal of containers. It is on these contentions that the petitioners have sought for directions to the respondents 2 and 3 to consider and act upon the
complaint filed by the petitioners before the Police, and to provide them effective assistance to remove the containers mentioned in the complaint from
the stockyard at Binanipuram.
11. In the counter affidavit filed by the 4th respondent, it is contended that the 5th respondent committed default in paying the license fee and they
abandoned the stockyard. Utilising this situation, the petitioners have unauthorisedly entered the stockyard and have parked their containers in the CFS
facility. This would clearly amount to trespass and a clear infringement of the rights of the owner, the 4th respondent herein. For illegal occupation and
storage, the 4th respondent would be entitled to the rent that is payable and also the cost towards demurrages. It is contended that the 4th respondent
has instituted suits before the Sub Court, North Paravur seeking to recover charges from the Agencies which have parked their containers in the
property which include the petitioner in W.P.(C) No.1366 of 2020 and those suits are pending consideration. It is contended that this Court in exercise
of jurisdiction under Article 226 will not be justified in interfering with the rights of the 4th respondent to secure the charges for wrongful use of their
property. In the additional counter affidavit filed by the 4th respondent, it is contended that there has arisen a relationship of bailor and bailee between
the petitioners and the 4th respondent, though there is no enforceable contract between them. It is contended that other agencies have come forward
to settle the disputes by recourse to mediation and there is no reason why the petitioners have not exercised their option.
12. I have heard Sri.V.M. Syam Kumar, the learned counsel appearing for the petitioners, Sri.Shaijan C. George, the learned counsel appearing for the
4th respondent, Sri. P.G.Jayasankar, the learned Standing Counsel appearing for the Customs and Sri.P.P.Thajudeen, the learned Government
Pleader.
13. Notice to the 5th respondent was duly sent by Registered post and since there is no appearance, this Court had declared that the service was
complete by order in I.A.No.1 of 2021 in W.P.(C).No.1366 of 2020 and I.A.No.2 of 2021 in W.P.(C) No.34460 of 2019.
14. On going through the sequence of events as detailed above, it is apparent that the 4th respondent had executed a license deed in favor of the 5th
respondent permitting them to use the CFS facility at Binanipuram. The license deed was last executed on 1.12.2017 and it was for a period of 11
months. This fact is admitted by the 4th respondent in the Arbitration Application filed before the District Court as well as in the plaint filed in the two
suits before the Sub Court, North Paravur. It was during the currency of the license that the petitioners herein had parked their containers in the CFS
facility. Arbitration Application was filed on 20.12.2018 as is evident from Exts.P7 and P8. The interim order was granted on 21.12.2018 and the same
was vacated only on 29.6.2019 as is seen from Ext.P3 order.
15. Exts. P1 and P2 in W.P.(C) No.34460 of 2019 and Exts.P1 to P3 in W.P.(C) No.1366 of 2020 would reveal that the containers were parked in
the CFS much prior to the filing of the application before the District Court. The petitioners have taken a contention that they have entered into
contracts with the 5th respondent for using the CFS facility as is evident from Ext.P9 in W.P.(C) No.34460 of 2019 and Ext.P11 in W.P.(C) No.1366
of 2020 and it was pursuant to the same that they had ventured to park the same in the yard. The stand of the 4th respondent in the counter affidavit
filed before this Court is that the petitioners have trespassed into the CFS and had illegally parked the containers knowing fully well that the 5th
respondent had abandoned the yard and the possession of the same was with the 4th respondent. However, this contention is baseless as the 4th
respondent herein, in the Arbitration application filed by them on 22.12.2018 before the District Court, had stated in unequivocal terms that at the time
of issuance of notice seeking for the appointment of an Arbitrator as many as 3000 containers are lying in the petition schedule property. The prayer in
the petition was for interdicting the removal of the containers. This leaves no manner of doubt that at the time of parking the containers in the CFS
facility, the petitioners were unaware of the disputes between the 4th and 5th respondents, and they were proceeding on the basis that the 5th
respondent had every right to permit the parking of the containers in the yard.
16. The 4th respondent has no case that after the license with the 5th respondent was terminated, the agencies who had parked their containers in the
CFS facility based on the contract entered into with the 5th respondent, were informed about this development. They also have no case that the
petitioners were given a breathing time to remove the containers or to risk paying demurrage. On the other hand, it appears that the 4th respondent
approached the District Court and obtained a stay of removal of the containers and it was only on 29.6.2019 that the order was finally vacated. As the
interdictory order was in force, the petitioners could not have taken any steps to remove the containers from the yard. It was when obstruction was
caused to the removal of the containers that they had approached the police and later approached this Court complaining of inaction.
17. There is yet another matter which assumes some relevance. During the pendency of the application filed under Section 9 of the Act by the 4th
respondent before the District Court, MSC agencies had approached the Court complaining that the interim order passed by the District Court was
adversely affecting their rights and sought to vacate the same. After considering the matter from all angles, by a well-considered order, the District
Court had vacated the interim order to enable the said agency to take away the containers. The said order has not been subjected to any challenge. It
appears that the 4th respondent has then approached the Sub Court, North Paravur, to realize the amount due to them for allegedly storing the
containers in the CFS facility without their concurrence. As rightly submitted by the learned counsel, the petitioners also could have availed the
benefits of the order by approaching the District Court which had passed the interim order. However, the said application itself was withdrawn by the
4th respondent as is evident from Ext.P3. As things stand now, there are no interdictory orders preventing the petitioners from removing the
containers.
18. The learned Standing Counsel appearing for the Customs Department pointed out that it was on the execution of a bond that the petitioners were
exempted from paying customs duty on condition that the containers would be re-exported within a time stipulated. As requested by the petitioners,
extension was being granted by the Assistant Collector. Now the Superintendent of Customs have requested the petitioners to take out the containers
with police assistance. It is contended that for the disputes between the respondents 4 and 5, the 4th respondent cannot use force and interfere with
the obligation of the petitioners to re-export the containers.
19. Sri.Shaijan George, the learned counsel appearing for the 4th respondent would rely on the explanation to Section 148 of the Indian Contract Act,
1872 and it was argued that even if there is no privity of contract between the petitioners and the 4th respondent, the 4th respondent would step into
the shoes of the bailee, though the goods may not have been delivered by way of bailment. According to the learned counsel, as the bailee, in
accordance with the purpose of bailment, had permitted the petitioners to store the goods in the facility, they have the right to retain such goods until
they receive due remuneration for the services that they have rendered. The explanation to Section 148 would apply only in cases wherein, a person
who is already in possession of the goods of others, contracts to hold them as a bailee. In the instant case, such a circumstance has not arisen. At this
juncture, it would be profitable to bear in mind that the contention of the 4th respondent in the counter affidavit filed initially was that the petitioners
had trespassed into the CFS facility and that they had illegally stored the containers there. The said contention was found to be without merit by this
Court in view of the stand taken in the previous proceedings by the 4th respondent. Instead of warning the agencies who had parked their containers
in the CFS facility on the strength of the contract entered into with the 5th respondent about the termination of the relationship between the
respondents 4 and 5 and giving a breathing time to remove the containers from the facility, the 4th respondent proceeded to file an application under
Section 9 of the Act and obtained an interdictory order. The said application has hence been withdrawn as well. In view of the above, I am not in a
position to accept the contention of the 4th respondent that they are in a position to retain such goods until they receive due remuneration from the
petitioners herein for the alleged act of trespassing into the CFS facility and for parking their containers there.
20. After the withdrawal of the Arbitration Application, the 4th respondent has approached the Sub Court, Paravur and has instituted O.S.No.60/2019
seeking to realize Rs.26,25,000/- and other relief from the petitioner in W.P.(C) No.1366 of 2020. A suit has also been instituted against MSC
Mediterranean Shipping Company seeking to realize amounts as is evident from Exhibit R4(d). The 4th respondent can very well pursue the same and
realize the amount after establishing their right. Nothing prevents the 4th respondent from instituting a similar suit against the petitioner in as well. The
4th respondent has not made out any ground enabling them to interfere with the right of the petitioners to remove the containers parked in the CFS
facility at Binanipuram.
In the result, there will be a direction to the respondents 2 and 3 to afford effective protection to the petitioners to remove the containers parked in the
CFS Facility in the property of the 4th respondent at Binanipuram. This order is passed without prejudice to the right of the respondents 4 and 5, as the
case may be, to initiate appropriate proceedings to establish their entitlement to realize amounts, if any, from the petitioners.
These writ petitions are disposed of.
