SINO OCEAN LIMITED Vs. SALVI CHEMICAL INDUSTRIES LTD
LAWS(BOM)-2017-12-165
HIGH COURT OF BOMBAY
Decided on December 13,2017

Sino Ocean Limited Appellant
VERSUS
Salvi Chemical Industries Ltd Respondents

JUDGEMENT

K.R. Shriram, J. - (1.) A Counsel for respondent states, at the outset, that this Execution Application and Chamber Summons should actually be listed under the Commercial Division of this Court in view of the nature of dispute and therefore, directions is sought to the registry to classify this application as an application in its commercial division. Registry to do the needful. It has to be clarified that this matter has been specifically assigned to this Court." 1 This chamber summons is taken out by applicant for various reliefs. Due to passage of time, only prayer clause (a) with a rider as below and prayer clause (f) remain to be considered. Prayer clause (a) reads as under :- "(a) that from the funds deposited into Court by the Respondent, this Hon'ble Court be pleased to order and direct the Prothonotary & Senior Master, High Court, Bombay to pay to the Claimant in US $ currency the decretal amount of US $ 6,57,850/- together with interest at 8% from 13th April 2009 to 5th July 2010 and further interest on the total amount @ 8% till payment and/or realization by making payment into the Claimant's Bank Account, viz., SINO OCEAN LIMITED, BANK OF INDIA, HONGKONG BRANCH, RUTTONJEE CENTRE, 2ND FLOOR, 11 DUDDELL STREET, HONG KONG (ACCOUNT NNO.; 0 2 3 3 0 3 7 2 3 0) SWIFT CODE : BKIDHKHHXXX." Though the prayer is for payment of US $ 657,850/- together with interest at 8% from 13th April 2009 to 5th July 2010 and further interest on the total amount at 8% per annum till payment and/or realization by making payment into the claimant's bank account, on or around 31st July 2013, a sum of US $ 662,362/- has been paid over by Prothonotary and Senior Master, High Court, Bombay to claimant. According to claimant, this amount as on 31st July 2013 had increased to US $ 900,107/- and that left a short fall of US $ 237,475/- which, as on 23rd November 2017, has increased to US $ 319,816/- and it keeps increasing at the rate of US $ 144 per day until payment/realization. Prayer clause (f) reads as under :- "(f) that in the event of the Respondent failing to comply with prayer clause (c)(ii) above, (i) this Hon'ble Court be pleased to order and direct the attachment of the movable and immovable assets of the Respondent.; (ii) that this Hon'ble Court be pleased to order and direct the arrest and detention the Directors of the Respondent in civil prison for failure of the Respondent in depositing the balance decretal amount to the Claimant.; (iii) that this Hon'ble Court be pleased to order and direct the Directors of the Respondent to be present in Court for ascertaining as to what debts are due to the Respondent and for production of their books of accounts and documents pertaining to the properties.; (iv) that this Hon'ble Court be pleased to attach the immovable properties and movable properties standing in the name of the Respondent as per Schedule to the Execution Application.; (v) that this Court be pleased to order and direct the Respondent to disclose on oath within 7 days hereof the current list of assets both movable and immovable of the Respondent."
(2.) Though it reads in the event of respondent's failing to comply with prayer clause (c)(ii), since the Prothonotary and Senior Master has already remitted the amount available with him leaving a shortfall, according to Shri Narichania, counsel for claimant, prayer clause (f) has to be moulded to read in the event of respondent failing to pay them balance amount of US $ 319,816/- increasing at the rate US $ 144 per day from 24th November 2017, Items (i) to (v) of prayer clause (f) be granted. I am inclined to agree with Shri Narichania.
(3.) The facts in brief are :- Consignments of Sodium Saccharin were shipped to respondent in pursuance of three sales contracts dated 6th May 2008, 2nd June 2008 and 16th July 2008. The contract dated 6th May 2008 was for a total quantity of 20 MT at a unit price of US $ 20.4 per kg, the total contract value being US $ 409,000. The contract dated 2nd June 2008 was for a quantity of 7 MT at a unit price of US $ 21.30 with a total contract value of US $ 149,100. The contract dated 16th July 2008 was for a quantity of 20 MT at a unit price of US $ 19.25 with a total contract value of US $ 385,000. Subsequently, on 24th September 2008 an agreement was entered into and signed between the parties. The record of the agreement is reduced to a document which is styled as an "Agenda Of Meeting" (AOM). The agreement between the parties as reflected in the document was that respondent had agreed to give a discount of US $ 4.5 per kg. to respondent towards each of the above three shipments/invoices. The disputes arose as to whether the discount was given or not given but the fact is goods were shipped by the claimant and received by respondent.;


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