BHUSHAN STEEL AND STRIPS LTD. vs TYO TRADING ENTERPRISES AND ORS.

$~7

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 06th May, 2024

+ CS(COMM) 669/2016

BHUSHAN STEEL AND STRIPS LTD.
….. Plaintiff
Through: Mr. Rajesh Banati, Mr. Ashish Sareen and Mr. Ankit Banati, Advocates.
versus
TYO TRADING ENTERPRISES AND ORS.
….. Defendants
Through: Mr. E.R. Kumar, Mr. D.P. Mohanty, Ms. Sonal Gupta, Mr. Abhishek Thakral and Ms. Ruchi Chauhan, Advocates for D-3.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
1. The plaintiff had filed a suit for recovery of 4,09,183 USD equivalent to Rs.1,79,38,582.72/-. Three issues were framed on 31.05.2010 as under:
2. The evidence of the parties were recorder and suit was finally decided vide judgment dated 20.12.2017 of this Court, wherein Issue No.1 and 2 were decided in favour of the plaintiff and it was held that he is entitled to recovery of Rs.1,79,38,582.72 to be paid by defendant No.3 without interest, in paragraph 25 of the judgment, which reads as under:
“Defendant No.3 has claimed that its only duty was to transport the goods to Djibouti Port safely. The obligation to deliver the cargo at the Djibouti Port to the holder of the original Bills of Lading duly endorsed by defendant No.2 was that of M/s. J.Kothari and Company Ltd. It is,” however, not the case of defendant No.3 that the goods in question were delivered by them at Djibouti Port to M/s. J.Kothari and Company Ltd. The entrustment of the goods was to defendant No.3 at Mumbai, Port with, the clear undertaking that it would be safely transported to Djibouti Port. It was the bounden duty of the defendant No.3 to prove to whom the goods were handed over at Djibouti Port after the shipment reached its destination and if so, when and on the strength of which documents. All these aspects have not been established by defendant No.3. The defendant No.3 is thus liable for the loss of the goods in question and to make the payment of the goods in question to the plaintiff, of course, without any interest, in the absence of any stipulation to that effect.”

3. However, Issue No.1 pertaining to territorial jurisdiction of this Court to entertain the suit, was decided against the plaintiff and the plaint was directed to be returned to the plaintiff to be presented before the Court of competent jurisdiction, vide Judgement dated 20.12.2017.
4. Aggrieved by the finding on Issue No.1 and consequent return of the plaint, the plaintiff had filed FAO(OS) (COMM) 19/2019 before the Division Bench which reversed the findings on Issue No.1 vide its judgment dated 08.01.2024 and held that this Court has territorial jurisdiction to entertain the present suit and the matter was directed to be placed before the learned Single Judge for further orders.
5. An SLP (Civil) No.8488/2024 preferred by the defendant against the Order of the Division Bench, which was also dismissed.
6. Learned counsel for the plaintiff has thus submitted that since the findings on Issue No.1 and 2 have already been made by the learned Single Judge, the suit is now liable to be decreed in the aforesaid terms.
7. Learned counsel on behalf of the defendant No. 3, however, has opposed this plea and has claimed that because it had been found that this Court had no territorial jurisdiction vide Judgement date 20.12.2017, the findings on Issue No.1 and 2 holding the liability of the defendant to pay the amount, is without jurisdiction. Therefore, the issues are required to be decided afresh.
8. This argument on behalf of learned counsel for the defendant is absolutely untenable in view of the affirmative finding of the Division Bench and the Apex Court that this Court has territorial jurisdiction to entertain the present suit. Once, it has been held finally that this Court has territorial jurisdiction, the findings of this Court on Issue No.1 and 2 on merits cannot be held to be by a Court which lacked territorial jurisdiction.
9. Learned counsel for the defendant has also taken an another plea that M/s Bhushan Steel & Strips Ltd., the erstwhile plaintiff, has been taken over by TATA Steel Limited. Therefore, without amending the memo of the parties, the plaintiff cannot be held entitled to a decree.
10. The plaintiff has placed on record copy of the Order dated 02.11.2022 vide which its application seeking substitution of the name of the applicant by that of TATA Steel Ltd. had been considered and was allowed, by the Division Bench in FAO(OS) (COMM) 19/2019. The name of the plaintiff before the Division Bench was accordingly substituted. The SLP had also been filed against the substituted plaintiff.
11. It is established law that an appeal is an extension of the suit and once the substitution has been effected in the proceedings before the Division Bench, no fresh substitution is required in the present suit. The name of the plaintiff is now being reflected as that of TATA Steel Ltd. The objections taken on behalf of the defendant is also not tenable. The plaintiff is hereby directed to file the amended memo of parties.
12. Since, the learned Single Judge vide his judgment dated 20.12.2017 has already given the findings in favour of the plaintiff in regard to the recovery of money under Issue Nos 2 & 3, the present suit is hereby decreed in the sum of Rs.1,79,38,582.72/- to be paid by defendant No.3 within three months. In case the defendant No.3 fails to pay the decretal amount within a period of three months, the plaintiff shall be entitled to interest @ 5% per annum from the date of this Order till the date of realization. The Plaintiff is also granted the Costs.
13. Decree Sheet be prepared accordingly.

(NEENA BANSAL KRISHNA)
JUDGE
MAY 06, 2024
va

CS(COMM) 669/2016 Page 4 of 4