Hyundai Mercahnt Marine India Pvt Ltd v. Union Of India

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 02.07.2021 CORAM :

THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM W.P.Nos.33098 & 33104 of 2018 and W.M.P.Nos.38383 & 38392 of 2018 Hyundai Merchant Marine India Pvt. Ltd., A company incorporated under the Companies Act of 1956 having registered office at No.318, Old No.809, Poonamallee High Road, Ega Trade Centre, 3rd Floor, Kilpauk, Chennai - 600 010.

... Petitioner in both writ petitions Vs.

1.Union of India Through the Department of Revenue & Central Board of Excise and Customs, Customs House, 60, Rajaji Salai, Chennai - 600 001.

2.Ennore Cargo Container Terminal of India, 144, Kandakarai Village, S.R.Palayam, Chennai - 600 120.

3.Office of Assistant Commissioner of Customs, Office of the Commissioner of Custom, Chennai IV, Custom House, 60, Rajaji Salai, Chennai - 600 001.

... Respondents in both writ petitions Prayer in W.P.No.33098 of 2018 : Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus directing the respondents to forthwith release and return to the petitioner's container bearing Nos.HDMU6371443, GLDU7424300, DFSU1111888, CRXU3037300, TCLU5940794, DRYU9054994, BSIU2821698, TCKU1962946, TRHU2169555, CAIU2697405, TEMU4773072, HDMU6388549, FCIU5153701, FSCU4013601, CNSU2033682, CNSU2048954, SEGU1599844, TRHU1593018, FCIU5006070, TCKU2755331, HDMU6473050, HDMU7405255, HDMU7410734, HDMU7413353, HDMU7406987, HDMU7412001, DFSU2486111 and GESU6130140 and pay such compensation towards the container idling charges as may seem appropriate to this Hon'ble Court upto the date of

release of the said containers.

Prayer in W.P.No.33104 of 2018 : Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Declaration declaring the conduct of the respondents detaining of petitioner's container bearing Nos.HDMU6371443, GLDU7424300, DFSU1111888, CRXU3037300, TCLU5940794, DRYU9054994, BSIU2821698, TCKU1962946, TRHU2169555, CAIU2697405, TEMU4773072, HDMU6388549, FCIU5153701, FSCU4013601, CNSU2033682, CNSU2048954, SEGU1599844, TRHU1593018, FCIU5006070, TCKU2755331, HDMU6473050, HDMU7405255, HDMU7410734, HDMU7413353, HDMU7406987, HDMU7412001, DFSU2486111 and GESU6130140 as contrary to the provisions of the Customs Act, 1962 and hence illegal and further hold that the respondents are not entitled to claim or demand any charges from the petitioner with respect to the aforesaid containers.

For Petitioner : Mr.Mahesh Kumar in both writ petitions For R1 and R3 : Mrs.R.Hemalatha Senior Standing Counsel in both writ petitions For R2 : Dr.R.Sunitha Sundar in both writ petitions C O M M O N O R D E R W.P.No.33098 of 2018 :

The relief sought for in W.P.No.33098 of 2018 is to direct the respondent to forthwith release and return the petitioner's containers bearing Nos.HDMU6371443, GLDU7424300, DFSU1111888, CRXU3037300, TCLU5940794, DRYU9054994, BSIU2821698, TCKU1962946, TRHU2169555, CAIU2697405, TEMU4773072, HDMU6388549, FCIU5153701, FSCU4013601, CNSU2033682, CNSU2048954, SEGU1599844, TRHU1593018, FCIU5006070, TCKU2755331, HDMU6473050, HDMU7405255, HDMU7410734, HDMU7413353, HDMU7406987, HDMU7412001, DFSU2486111 and GESU6130140 and pay such compensation towards the container idling charges.

2.The petitioner is a company incorporated under the Companies Act, 1956. The petitioner states that they are the agent of Hyundai Merchant Marine Company Limited, Seoul (Korea), which carries on business as container owners and carriers at Korea. The petitioner is entrusted with the obligation to receive and return the containers to the Principal company after the discharge of the cargo. 3.The prime contention of the petitioner is that,

certain containers imported are illegally detained by the respondents, and in spite of their request, the respondents have not taken any steps to release the containers as specified. Thus, the petitioner is constrained to move the present writ petition.

4.The learned counsel appearing on behalf of the 2nd respondent/Customs Cargo Service Provider made a submission that the writ petition itself is not maintainable. Various procedures are contemplated for the purpose of release of containers imported and therefore, the petitioner has to produce all relevant documents and comply with the conditions stipulated for the release of the containers as sought for in the present writ petition. It is contended that, on various reasons, the containers are lying under the control of the 2nd respondent. If at all any dispute prevails with the Customs Department, the same is also to be sorted out and all necessary actions are to be taken in this regard. This apart, such disputes are of civil nature and the 2nd respondent/Customs Cargo Service Provider is a private company and with reference to the agreement between the petitioner and the 2nd respondent, the disputes are to be resolved before the competent forum and no writ petition can be entertained in this regard.

5.This Court is of the considered opinion that imports and exports are to be done by following the procedures contemplated and by complying with the mandatory requirements. The relief as such sought for in the present writ petition to direct the respondents to forthwith release and return the containers, itself is absurd. Such a relief requires adjudication in view of the fact that there are statutory requirements and compliance of the terms and conditions with the Customs Cargo Service Provider and other aspects of the matter. Without adjudicating all those factors, the High Court cannot issue a writ granting the relief in the writ petition filed.

When disputed facts are raised between the parties, the same cannot be entertained and the High Court cannot conduct a roving enquiry with reference to the dispute, which is to be resolved with reference to the documents and evidence produced before the competent authorities. 6.This being the principles to be followed, the relief as such sought for in the present writ petition cannot be granted and the petitioner is at liberty to approach the competent authority of the respondents or before the competent forum for the purpose of adjudication of disputes and redressal of grievances.

7.With these observations, the writ petition in W.P.No.33098 of 2018 stands disposed of. No costs.

Consequently, connected miscellaneous petition is closed. W.P.No.33104 of 2018 :

8.This writ petition is filed by the very same petitioner, namely, Hyundai Merchant Marine India Private Limited, and the relief sought for is to declare the conduct of the respondent detaining the petitioner's containers, as illegal.

9.In view of the observations made in W.P.No.33098 of 2018, no further consideration is required to the grounds raised. The petitioner has to comply with the statutory requirements, including the payment of charges to be paid as per the terms and conditions of the contract or under the Statute. However, for grant of any such declaration as sought for, elaborate adjudication is required. The High Court cannot entertain any such adjudication which is to be done with reference to the documents and evidence, and therefore, the petitioner is at liberty to approach the competent authorities for adjudication of issues or before the competent forum in the manner known to law.

10.With these observations, the writ petition in W.P.No.33104 of 2018 stands disposed of. No costs.

Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar mkn To 1.The Department of Revenue & Central Board of Customs House, Union of India, 60, Rajaji Salai, Chennai - 600 001.

2.The Office of Assistant Commissioner of Customs, Office of the Commissioner of Customs, Chennai IV, Custom House, 60, Rajaji Salai, Chennai - 600 001.

+2cc to Mr.Rohini Ravikumar, Advocate, S.R.No. 31082 W.P.Nos.33098 & 33104 of 2018 SKY(CO) GN(04/08/2021)