1. Heard Mr.Deven Parikh, learned Senior Counsel for Mr.N.P. Shah for the plaintiff and Mr.Dakshesh Mehta, learned counsel for the defendant.
2. Both the learned counsel tender suggested issues.
3. Considering the issues suggested by the learned counsel for the parties and considering the pleadings, the same are accepted as the issues. The same are as follows:-
"1. Does the plaintiff prove that it is the owner of the cargo of 118.50 M/Ts of Castrol Oil?
2. Does the plaintiff prove that it had entered into a Contract with Chemtrade Ltd., Russia for sale to it of 118.50 M/Ts of Castrol Oil?
3. Does the plaintiff prove that the cargo of 118.50 M/Ts of Castrol Oil was valued at US$208.240.50?
4. Does the plaintiff prove that the cargo of 118.50 M/Ts of Castrol Oil was stuffed by them in the defendant's containers?
5. Does the plaintiff prove that it received part payments towards the value of the cargo and that the Russian buyer, Chemtrade Ltd., has not paid the remaining amount of US$ 145,296?
6. Does the plaintiff prove that on 17.6.2008, it instructed CMA-CGM GLOBAL (INDIA) PVT. LTD., who is the agent of the defendant not to deliver the cargo to the Russian buyer unless and until Original Bill of Lading were presented by the Russian buyer, Chemtrade Ltd.?
7. Does the plaintiff prove that on 22.7.2008, it sent an e-mail to the defendant's agent in India to call back the cargo to India to divert it to China or Taiwan?
8. Does the plaintiff prove that the defendant is liable having wrongfully delivered the cargo to the Russian buyer without production by them of the Original Bills of Lading?
9. If answer to Issue No.8 is in the affirmative, do the defendants prove that they handed over to the Russian buyer, Chemtrade, delivery of the cargo against original Bills of Lading?
10. Do the plaintiffs prove that they are entitled to recover from the defendants the sums of a) US$ 145.296 towards invoice value of the cargo alleged to be delivered by the defendants to the Russian buyer without production of the original Bills of Lading, b) US$ 27,255 towards loss of profit, c) US$ 75,096 towards damages and d) US$ 21,724 towards interest @ 18% per annum from 1.6.2008 to 30.3.2009?
11. Whether or not the plaintiff entered into a contract for supply of 11850 M.Tons of Castor Oil with Chemtrade Limited in Russia at the price of USD 208240.50?
12. Whether the said 11850 M.Tons of Castor Oil was shipped by the plaintiff on vessel 'CMA-CGM' Kingston' on 8/5/2008 or thereabouts, for delivery from India to Russia?
13. Whether or not CMA -
CGM France operated, possessed and managed the aforesaid vessel 'CMA-CGM Kingston' at the time of the said shipment?
14. Whether or not CMA-CGM Global (India) Pvt. Limited are agent of CMA-CGM France and whether this agent issued bill of lading Nos.IN 1411728, IN 1412486 and IN 1412489 all dated 8/5/08 for 21.50 MTs, 54 M.tons and 43 M.Tons respectively.
15. Whether or not the Chemtrade Limited, Russia failed to pay the balance purchase price in the sum of USD 145296.00 as per their agreement with the plaintiff?
16. Whether or not the plaintiff advised CMA-CGM Global (India) Pvt. Ltd. on 17/6/08 to not deliver the cargo to the Russian buyer unless and until the original bill of ladings were presented by the Russian buyer?
17. Whether or not CMA-CGM Global (India) Pvt.Limited forwarded these instructions to their principals on 18/6/08?
18. Whether or not the plaintiff received a further amount of USD 37302.50 on 23/608 and 24/6/08 from the purchaser?
19. Whether or not the Russian buyer was required to pay an amount of USD 145296.00 to the plaintiff as per the original contract even after the receipt of part payment on 24/6/2008 which the Russian buyer failed to tender?
20. Whether or not the plaintiff who was constantly following up CMA-CGM to not deliver the cargo on 22/7/08 sent e-mail to the agent at India to call back the cargo to India or to deliver it to China or Taiwan at their cost?
21. Whether or not CMA-CGM then enquired about the status of the original bill of lading from the plaintiff and as to whether or not they were surrendered at the port of discharge by the plaintiff? Whether or not the plaintiff replied that the original bills of ladings were with them?
22. Whether or not by e-mail dated 23/7/08, the agent of CMA-CGM France called the plaintiff to surrender the original bill of landing which the plaintiff refused and requested that the cargo be called back to India or diverted to China?
23. Whether or not the agent of CMA-CGM visited Delhi office of plaintiff to verify the original bill of ladings?
24. Whether or not CMA-CGM, their agent etc. kept the plaintiff in the dark with regard to the true status of the cargo?
25. Whether or not CMA-CGM delivered the cargo on 5/7/08, 9/7/08 and 11/7/08 or any such other date so that the entire cargo is now not in the possession of the said CMA-CGM?
26. Whether or not CMA-CGM breached their obligations in law, by handing over the cargo without the original bill of landings issued to the plaintiff being presented to them at the port of discharge?
27. Whether or not Mr.Vijay Raghavan, employee of CMA-CGM and/or their agent sent e-mails dated 23/7/08, 24/7/08 and 25/7/08, seeking to take possession of the original bill of lading and at the same time confirming that the bill of ladings are with the plaintiffs, on the pretext that this was necessary to take approval from Head Office for return of the cargo?
28. Whether or not a representative of CMA-CGM visited the plaintiff's office for inspection of the original bill of lading and the plaintiff provided Xerox copies as sought for?
29. Whether or not the plaintiff confronted CMA-CGM by their e-mail dated 29/7/08?
30. Whether or not the agent of CMA-CGM by e-mail dated 31/7/08 enquired about the price being paid for the cargo and other connected details and whether the same was duly replied by the plaintiff by e-mail dated 31/7/08?
31. Whether or not the e-mails are exchanged from 24/7/08 to 31/7/08?
32. Whether or not delivery was given by CMA-CGM and/or their agent and employee, etc. on the basis of fake and erroneous bills of landing?
33. Whether or not duplicate, forged, made-up, fraudulent bills of ladings were generated by CMA-CGM's agent in India?
34. Whether the bills of ladings on which the delivery is given are forged, duplicate and not the original on which alone delivery can be made?
35. Whether there is collusion and connivance between CMA-CGM and the Russian purchaser in enabling the Russian purchaser to take delivery of goods?
36. Whether or not the plaintiff addressed letter to DSP, Kutch on 8/10/08 in the form of a complaint with regard to the fraud committed by CMA-CGM?
37. Whether or not the vessel M.V. CMA-CGM Bizet is under the operation, management and control of CMA-CGM France and/or their agent when it touched Mundra port on or around 30/3/2009?
38. Whether or not the plaintiff has suffered damages in the sum of US Dollar 269371.00 in light of breach of contract of carriage and in light of the illegal act on the part of the defendants in releasing the cargo to the Russian Company without production of the original bill of lading by CMA-CGM?
39. Whether the plaintiff is entitled to the arrest of "MV CMA-CGM Bizet" as prayed for in the admiralty suit?
40. Whether the plaintiff proves that they have suffered damages in the sum of USD269371.00 and that the damage has been occasioned in light of the defendant's breach of the contract of carriage and applicable laws?
41. Whether or not the plaintiff is entitled to interest @ 18% and from which date?
42. Whether the plaintiff is entitled to return of a sum of Rs.14.00 lacs along with interest which they have deposited from the defendant?
43. Whether the plaintiff is entitled to recover the aforesaid amount from the deposit of Rs.1,37 crores made by the defendant in the course of these proceedings with the Registrar of this Honourable Court, along with interest accrued thereon and be further entitled to a decree against the defendant, for any further amount?
44. Costs of the proceedings."
(R.M.CHHAYA, J.) Hitesh Top