Altamas Kabir, J. - (1.) This order is being passed at the stage of notice on the Special Leave Petition filed by Suchetan Exports P. Ltd., which was the Defendant No. 1 in Special Civil Suit No. 187 of 2011 filed by Gupta Coal India Limited, the Respondent No. 1 herein.
(2.) Some of the facts disclosed in the Plaint and the Written Statement are not disputed. It is not disputed that on 12.4.2010, the Plaintiff and the Defendant No. 1 entered into an Agreement for sale and purchase of South African Coal measuring 16,943 metric tonnes. The Plaintiff agreed to sell the said quantity of coal to the Defendant No. 1 at US $111.75 per metric tonne. On 22.4.2010, the Plaintiff, i.e., the Respondent No. 1 herein, entered into another High Seas Sale Agreement with the Defendant No. 1/Petitioner herein. Clause 2 of the said Agreement provides that the Plaintiff/Respondent No. 1 herein had imported 16,943 metric tonnes of Steaming Non Coking Coal in bulk of South African origin and had shipped the same on MV Novios Meridian arriving at Dharamtar Port, under Bill of Lading Numbers 2, 3 and 4, all dated 8.4.2010. Clause 3 of the Agreement provides that the Plaintiff had agreed to sell and the Defendant No. 1 had agreed to purchase the consignment of the coal on High Seas Sale basis, subject to the terms and conditions specified there under. Clause 3(b) of the Agreement provides that the quality determined and certified by an independent inspecting agency at Disport would be final and binding on both the parties.
(3.) On 22.4.2010, the aforesaid vessel containing coal imported through the Respondent No. 3, Venkatesh Karriers Limited, reached the Dharamtar Port at Mumbai and according to the case made out in the plaint, the coal was delivered to the Respondent No. 2, M/s United Shippers Limited, as the stevedore agent. On the same day, the Respondent No. 1/Plaintiff raised and delivered a High Seas Sales Invoice for an amount of Rs. 8,25,46,296/- upon the Petitioner herein for sale of the said coal. Consequent thereupon, the Respondent No. 2 handed over the total quantity of 9,542.920 metric tonnes to the Petitioner till the date of filing of the suit. The balance quantity of coal amounting to 7400.082 metric tonnes was lying with the Respondent No. 2 out of the total quantity of 16,943 metric tonnes received by it from the Petitioner.;