Bhaskar Bhattacharya, J. - (1.) THIS appeal is at the instance 6f a plaintiff in a suit for declaration and injunction and is directed against an order dated 6th October, 2010 passed by a learned Single Judge of this Court by which the learned Single Judge dismissed an application for interlocutory injunction after vacating the interim order earlier passed by the Court.
(2.) BEING dissatisfied, the plaintiff has come up with the present appeal. The appellant before us filed in the Original Side of this Court a suit being C.S. No. 173 of 2009 and thereby praying for the following reliefs: Decree for declaration that there is no con 08 or 17th April, 2008 between the plaintiff and the defendant as claimed by the defendant; b) Decree for delivery up and cancellation of the alleged contracts dated 10th June, 2008 and 17th April, 2008 and the same be adjudged as null and void; c) A decree for declaration that there is no arbitration agreement as claimed by the defendant; d) A decree for declaration that the defendant is not entitled to proceed in arbitration as against the plaintiff; e) A decree for perpetual injunction restraining the defendant from proceeding any further with arbitration or from taking any further steps on the basis of the notice dated 16th June, 2009; A decree for perpetual injunction restraining the defendant from proceeding in arbitration as against the plaintiff before the Grain & Feed Trade Association; g) A decree for perpetual injunction restraining the defendant from taking any steps or any further steps on the basis of the alleged contract dated 10th June, 2008 and 17th April, 2008; h) A decree for perpetual injunction restraining the defendant from taking any steps or any further steps on the basis of the purported claim for arbitration as against the plaintiff; i) Attachment before judgment; j) Receiver; k) Injunction; 1) Costs; m) Further and other reliefs;" The case made out by the plaintiff in the plaint may be summed up thus: a) The plaintiff carries on business as dealer of peas and pulses and the defendant is an exporter of French Yellow Peas. In the usual course of business, the plaintiff had entered into an agreement dated 19th May, 2008 with the State Trading Corporation of India Limited (STC) for the purpose of purchase of a quantity of 21,500 M.Ts, 5% more or less, of French Yellow Peas. Such contract was made pursuant to a prior contract entered into between STC and the defendant on 17th April, 2008 for the purpose of purchase of 21,500 M.Ts, 5% more or less, of French Yellow Peas in bulk to be sold by the defendant to the STC. b) The contract dated 19th May, 2008 was entered into between the plaintiff and the STC at the office of the STC at 11, R.N. Mukherjee Road, Kolkata, within the jurisdiction of this Court. The contract of 17th April, 2008 was accepted by the STC at its office at 11, R. N. Mukherjee Road, Kolkata. c) Under the contract dated 19th May, 2008, it was agreed by and between the plaintiff and the STC that the goods should be sold on high sea sale basis by the STC to the plaintiff and any claim as regards the quality or quantity was to be lodged and pursued by the STC at the cost of the plaintiff and the claim proceeds were to be reimbursed to the plaintiff and no claim would lie against the STC by reason of any claim as regards the quality or quantity of the goods. d) According to the plaintiff, the STC in performance of the terms of the contract dated 17th April, 2008 opened a letter of credit on 22nd May, 2008 and the defendant, from time to time, shipped several quantities of French Yellow Peas in bulk in the containers on diverse dates, the particulars of such shipment, was specifically stated in the plaint. e) 18,106.698 M.Ts. of goods in seven consignments were shipped from the port of Rouen, France, for carriage to Navaseva and the said goods were discharged at the Port of Navaseva. The defendant obtained payment for the entire quantity of 18,106.698 M.Ts. of French Yellow Peas by the operation of the letters of credit and by presenting documents as required. f) In terms of the said contract, the defendant was under a duty and obligation to supply French Yellow Peas of the quality as had been agreed and under the aforesaid agreement, seven consignments which were shipped, a total of 18,106.698 M.Ts. of French Yellow Peas had been shipped by the defendant and those goods have been received by the plaintiff under the contract dated 19th May," 2008. g) Upon arrival of the first consignment on 26th July, 2008, the plaintiff at the time of de-stuffing the first container, became apprehensive that the quality was not as per the specification of the contract and the surveyor was appointed for survey of the consignment and from the survey report submitted by the surveyor, it was evident that the quality of the goods shipped by the defendant was not in accordance with contractual specifications. h) The fact that those goods were not in accordance swith the contractual specifications was intimated to the defendant through the broker and the defendant expressly accepted the appointment of SGS India to survey the goods at the discharge port. i) From the report of SGS India, it appeared that out of seven consignments only one consignment covered by the Bill of Lading was within the contractual specifications and the remaining six consignments were not in accordance with the contractual specifications. Out of the quantity of 16,084.982 M.Ts. of French Yellow Peas covered by the six consignments, the plaintiff with great effort has only been able to sell 19.920 M.Ts. of the goods at a lower price of 18,410/- per M.TS. and the goods under the aforesaid six consignments were of unmerchantable quality and by reason thereof, the plaintiff had suffered loss and damages being the price paid for the entire balance quantity of 16,084.982 M.Ts. French Yellow Peas. The expenses incurred by the plaintiff for the said goods is US$11,56,460.65 which is equivalent to Indian Rs.47,41,53,190/- at the prevailing exchange rate. k) By reason of the breach of the terms of the contract by the defendant, the plaintiff had suffered loss and damages for the sum of Rs.47,41,53,190/-. 1) The plaintiff on 16th June, 2009 received a notice from the defendant at its office at 12, Government Place (East), Kolkata to a claim for arbitration and in the said notice, there is reference to an alleged contract dated 10th June, 2008 allegedly replacing another alleged contract dated 17th April, 2008. By the said notice, the defendant has informed the plaintiff that they were claiming arbitration in accordance with the rule of Grain & Feed Association in respect of the alleged contract dated 10th June, 2008 for the same of 21,000 M.Ts. 5% more or less, of French Yellow Peas and one Mr. Libre has been appointed as Arbitrator by the defendant. m) There is no contract dated 10th June, 2008 between the plaintiff and the defendant and there is a contract dated 17th April, 2008 between STC and the defendant for the sale of 21,500 M.Ts. 5% more or less, of French Yellow Peas pursuant to which 18,106.698 M.Ts. of French Yellow Peas have been shipped and payment has been obtained under the said letter of credit for such quantities. n) There is no agreement dated 10th June, 2008 between the parties as alleged and no goods have been shipped into India pursuant to any contract between the plaintiff and the defendant and claim for arbitration in the notice dated 16th June, 2009 is illegal, null and void. ' On the basis of the aforesaid notice dated 16th June, 2009, on 18th june, 2009 and 19th June, 2009, the defendant has by various e-mails of the abovementioned dates sought to serve on the plaintiff a copy of an ' application for obtaining order of injunction along with other documents in connection with the arbitration proceedings. Subsequent to serving such documents, an order of injunction has been obtained on 19th June, 2009 to restrain the plaintiff from proceeding with C.S. No.151 of 2009 1 except for the purpose of obtaining security for any claim. 1 p) The proceeding initiated by the defendant is an afterthought and has ; been filed with mala fide intention and is a counter-blast to the suit of the plaintiff. The defendant has no cause to go to arbitration as there is no contract or contract of arbitration between the plaintiff and defendant in which any French Yellow Peas have been shipped to India. The only subsisting contract is the contract dated 17th April, 2008 between the defendant and STC. The defendant is threatening to plaintiff with malicious proceeding by way of arbitration. Hence the suit.
(3.) ON the basis of the abovementioned averments made in the suit, the plaintiff filed an application before the learned Single Judge praying for an order of injunction restraining the defendant from taking any steps and/or further steps on the basis of notice dated 16th June, 2009 and from proceeding with arbitration on the basis of the alleged contract dated 10th June, 2008 or 17th April, 2008. A learned Single Judge of this Court on such application initially on 7th July, 2009 passed an interim order for six weeks which was extended from time to time and thereby restraining the defendant, its servants and agents from proceeding with the arbitration against the plaintiff in any manner.;