Harish Tandon, J. - (1.) THE petitioner No. 1 imported. RBD palm olien (edible grade) and sold 500 mt. of the said oil on high seas sale with the petitioner no. 2 on 1st October 2008. The petitioner no. 1 claimed that the petitioner no. 2 is its sister concern and both are carrying on the business from their registered office at 24A Shakespeare Sarani, Kolkata - 700 071. Subsequently the petitioner no 2 entered into another high seas sale agreement dated 1st October 2008 with the respondent no. 5 being the proprietorship concern of the respondent no. 6. Bill of lading was also executed on the basis of the said high seas sale agreement by the petitioners in favour of the said respondent no. 5.
(2.) HOWEVER it is contended by the petitioners that the respondent no. 1 and 2 had a long standing business relationship with the petitioners and the respondent no. 3 and 4 are the brokers of the edible oils and had been acting in such capacity for and on behalf of the petitioners and acquired confidence and trust of the petitioners. The said respondents subsequently approached in such capacity to the petitioners indicating that the respondent no. 1 and 2 are interested in purchase of 500 mt. of the said edible oil, since the petitioner had a previous dealing with the aforesaid respondents and as such there was no hesitation in accepting the said proposal of the respondent no. 3 and 4 and ultimately the price was finalized at Rs. 3,75,000/ - per mt. CIF, Kandla. Thereafter, on a representation of the respondents no. 1 and 4 that the respondent no. 5 is a business concern of the respondent no. 1 and 2 and the respondent no. 6 and as such the high seas sale agreement could be entered into with the respondent no. 5 which was accepted by the petitioner as they could not doubt the genuineness of the representation of the respondent no. 1 and 4 because of the long standing business relationship. Subsequently the petitioners came to know that the aforesaid representation was false as the respondent no. 5 has no financial status and is the proprietorship concern of the respondent no 6. It is alleged that the aforesaid respondents have colluded and hatched a conspiracy against the petitioner by their fraudulent act; particulars whereof are set out in the plaint. On the aforesaid facts it is further alleged in the plaint that upon execution of the high seas sale agreement the bill of lading was endorsed and necessary instruction was issued for delivery of the said 500 mt. of palm olien oil to the respondent no. 5. It is further alleged that out of 500 mt., 425 mt. (approx.) was taken delivery without payment of the agreed rate in terms of the said high seas sale agreement which constrained the petitioner no. 1 to issue a letter of cancellation of the delivery order on 22nd October 2008. It is hereby made clear that the aforesaid facts recorded herein is a reproduction of the allegations made in the plaint which is yet to be proved on trial. The aforesaid facts are narrated for the purpose of the present application and shall not be construed to be a finding of this court nor shall have any impact at the time of considering another inter locutory application or at the time of final disposal of the suit.
(3.) THE petitioner no. 2 thereafter filed a suit being CS 268 of 2008 against the respondent no. 6 upon obtaining a leave under clause 12 of the letters patent. Since the goods being perishable in nature, prayer was made for appointment of the receiver for the purpose of sale of 75 mt. of the palm olien oil. On 12th January 2009, an order was passed to hand over the aid goods to the respondent no. 6 who showed his readiness and willingness to pay the price at the agreed rate and the price value of the said 75 mt. of the palm olien oil was directed to be deposited with the Registrar, Original Side of the High Court at Calcutta.;