IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 10TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.4088 of 2017 (GM-RES) BETWEEN:
M/S.FIVE OCEAN CORPORATION PTE.LTD. HAVING ITS OFFICE AT 7TH FLOOR JEONG AN BUILDING 95 SEOSONUM RO, CHUNG-GU SOUTH KOREA-100 814 REPRESENTED BY ITS POWER OF ATTORNEY HOLDER/SIDDHESH KSHIRSAGAR ... APPELLANT (BY SRI.GURU PRASANNA S, ADVOCATE) AND:
1. THE COMMISSIONER OF CUSTOMS NEW CUSTOMS HOUSE NEW MANGALURU PORT PANAMBUR MANGALURU-575006 2. NEW MANGALURU PORT TRUST NEW MANGALURU PORT PANAMBUR MANGALURU-575006 REPRESENTED BY THE TRAFFIC MANAGER 3. IRIV ASIA PTE. LTD., NO.84, FLORA ROAD 03-18, SINGAPORE-507 001 REPRESENTED BY DIRECTOR.
4. LAKSHMI AGENCIES NO.106, 1ST FLOOR SILVER STREAK APARTMENTS ASHOK NAGAR CIRCLE MANGALURU-575 006 REPRESENTED BY AUTHORIZED SIGNATORY.
... RESPONDENTS (BY SRI.K.V.ARAVIND, ADVOCATE FOR RESPONDENT No.1 SRI.S.R.TEJAS, ADVOCATE FOR SRI.RAYAPPA Y HADAGALI, ADVOCATE FOR CAVEATOR/RESPONDENT No.2 SRI.S.RAJASHEKAR, ADVOCATE FOR RESPONDENT No.4 VIDE ORDER DATED 10.01.2018 SERVICE OF NOTICE TO RESPONDENT No.3 IS HELD SUFFICIENT) THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO (a) SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.51153/2016 (GM) DATED 08/02/2017; b)ISSUE A DIRECTION OR ORDER DIRECTING THE RESPONDENT NO.1 TO AMEND THE IGM TO REFLECT THE CHANGE OF THE NAME OF THE CONSIGNEE FROM THE RESPONDENT NO.4 TO ANY OTHER PARTY NOMINATED BY THE APPELLANT AND ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 08.02.2017 passed by the learned Single Judge in disposing off the writ petitions, while granting liberty to the petitioners to initiate proceedings for arbitration, the 1st writ petitioner has preferred this appeal.
2. The learned Single Judge while considering the plea of the petitioners held at paragraph 49 that liberty is reserved to the petitioners to resort to the initiation of the arbitration proceedings.
3. Admittedly, arbitration is provided for resolution of the dispute between the petitioners and the respondents. Therefore, we do not find any error committed by the learned Single Judge that calls for any interference. The appellant is required to initiate arbitration proceedings, if he so desires. Even otherwise, the material on record would indicate that even before the learned Single Judge efforts were made to amicably settle the dispute. The same did not yield any results. Even before the Appellate Court the matter was referred to mediation. The Bangalore Mediation Centre has filed its report dated 09.01.2018 indicating that the parties could not reach an amicable settlement. As a consequence on 10.01.2018, the 2nd respondent - New Mangalore Port Trust was directed to auction the coal lying inside the Port and to adjust the proceeds of the auction towards the dues payable by it and to deposit the balance amount if any.
4. The learned counsel for the 2nd respondent submits that the auction was conducted on earlier three occasions, but for various reasons had not succeeded. Hence, they are altering the terms of the tender and going in for a fresh auction shortly.
5. Therefore, we reserve liberty to the 2nd respondent to auction the coal in question and to adjust the proceeds towards the dues payable to it, and to maintain the accounts with regard to the same, subject to further proceedings, if any.
6. Under these circumstances, in the absence of any perversity in the order passed by the learned Single Judge, the writ appeal is dismissed with liberty as aforesaid.
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JUDGE JUDGE NG* CT:bms