Final Order 1

Order Details: Order below exhibit
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER BELOW EXH.46
NOTICE OF MOTION NO.503 OF 2020
IN
SUIT NO.4589 OF 2010
Bharat Petroleum Corporation Ltd. ] ...Plaintiff.
V/s.
The Board of Trustees of the Port of Mumbai. ] ...Defendant.
Appearances:
Mr. Darshit Jain, Ld. Advocate for plaintiff.
Ms. Arundhati Korale, Ld. Advocate for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 27th January, 2020
ORAL ORDER
1. Plaintiff took out this application to transfer this proceeding
due to its automatic transfer for redressal before the Administrative
Mechanism for resolution of CPSEs disputes (AMRCD).
2. Perused application and say. Heard both sides.
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3. Following points arise for my determination. I record my findings
thereon for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether suit is liable to be transferred
for redressal before the Administrative
Mechanism for Resolution of CPSEs
disputes (AMRCD) as prayed for ?
In the negative.
2. What Order ? As per final order.
REASONS
As to point Nos.1 & 2.
4. In brief, it is contention of the plaintiff that the suit is filed
for the financial loss and other consequences amounting to
Rs.48,11,883/ as detailed mentioned in the plaint.
5. On 22.05.2018, Government of India, Ministry of Heavy
Industries and Public Enterprises, Department of Public Enterprises has
circulated an Office Memorandum being No.F.No.4(1)/2013
DPE(GM)/FTS/1835 pertaining to “Settlement of commercial disputes
between Central Public Sector Enterprises (CPSE) inter se and CPSE (s)
and the Government Department(s) / Organizations (s) Administrative
Mechanism for Resolution of CPSEs Disputes (AMRCD)”.
6. As per Clause 3 of the said office memorandum, in the
event of any dispute or difference relating to the interpretation and
application of the provisions of commercial contract(s) between Central
Public Sector Enterprises (CPSEs) Port Trusts inter se and also between
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CPSEs and Government Department /Organizations (excluding disputes
concerning Railways, Income Tax, Customs & Excise Departments),
such dispute or difference shall be taken up by either party for its
resolution through AMRCD.
7. Plaintiff is a public body being under the auspices of the
Ministry of Petroleum and Natural Gas. Defendant is a Port Trust which
is bound by the policy decisions/ directions of the Central Government,
Ministry of Shipping. Therefore, the application made allowed as
prayed for.
8. In brief, it is contention of the plaintiff that this application
is filed to prolong the matter. The plaintiff's cause of action is based on
alleged tort of negligence allegedly committed by the defendants. The
defendant is not a central public sector enterprise. The defendant is a
statutory body constituted under the provisions of The Major Port
Trusts Act, 1963. As per Section 5 of Major Port Trusts Act, the
defendants can sue and be sued. The said office Memorandum dated
22.5.2018 is not applicable in toto. The said office Memorandum
covers disputes arising out of commercial contract between the Central
Public Sector Enterprises. The plaintiff has not relied upon any
commercial contract between the plaintiffs and the defendants. All the
other adverse contentions are denied.
9. Perused record. It appears that due to the absence of PW
4, the evidence of plaintiff No.4 is closed. Matter was adjourned to
24.10.2014 for evidence of defendants. Learned Advocate appearing
for plaintiffs submit that prayer Clause (b) of this application is to recall
order of closing evidence of PW4. The plaintiff has filed separate
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Notice of Motion for setting aside the said order of closing evidence of
PW4. The said Notice of Motion is decided in favour of plaintiff.
Therefore, prayer Clause (b) of this application become influctuous.
10. The Learned Advocate appearing for plaintiff filed copy of
application submitted before the Sole Arbitrator, The Hon'ble Mr.
Justice Wariya retired. The defendant herein had filed said application
for arbitration on the basis of said Office Memorandum dated
22.05.2018. Therefore, this application be allowed.
11. The Advocate appearing for defendants submitted that the
application had filed before the sole Arbitrator because facts and
circumstances were different than the present matter. Therefore, on the
basis of said application, present application cannot be allowed.
12. I have gone through the said Office Memorandum. It is
specifically mentioned in para 3 of the said Office Memorandum that in
the event of any dispute or difference relating to the interpretation and
application for provisions of contracts between Central Public Sector
Enterprises (CPSEs) Port Trusts inter se and also between CPSEs and
Government Department /Organizations (excluding disputes concerning
Railways, Income Tax, Customs & Excise Departments), such dispute or
difference shall be taken up by either party for its resolution through
AMRCD.
13. Perused plaint. It is contention of the plaintiff that plaintiff
incurred financial loss due to migration of product during the receipt of
imported SKO from MT “British Unity” at MOT occurred on 13.09.2006
during pipeline transfer of SKO and Naphta from MOT to BPCL and
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Hindustan Petroleum Ltd. Refineries respectively. There was loss of
500 kl in BPCL SKO and corresponding gain in HPCL Naphta tank after
completion of aforesaid transfer.
14. After going through the plaint, I am of the opinion that
there is no commercial contract between the plaintiff and defendant.
The suit is filed for compensation. Considering the nature of the suit
and the averments in the plaint, I am of the opinion that the said Office
Memorandum is not applicable to transfer this proceeding for redressal
as prayed for. I do not find substance to allow the application. Hence,
I record my findings to point No.1 in the negative and point No.2 is
rejected as per final order. Hence following order:
ORDER
1. Application Exhibit 46 is hereby rejected.
2. This application be registered as Notice of Motion for statistical
purpose.
3. Costs in main cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 27/01/2020 City Civil Court, Gr. MUMBAI
Dictated on : 27.01.2020
Transcribed on : 04.02.2020
Checked on : 04.02.2020
Signed on : 04.02.2020
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
13.02.2020 at 03.20 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 27.01.2020
Judgment/order signed by P.O. on 04.02.2020
Judgment/order uploaded on 13.02.2020
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