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Standard Retail Pvt. Ltd. & Others v/s M/s. G.S. Global Corp & Others


Company & Directors' Information:- J K CORP LIMITED [Not available for efiling] CIN = U21015OR1938PLC000427

Company & Directors' Information:- G CORP PRIVATE LIMITED [Active] CIN = U70102KA2001PTC028962

Company & Directors' Information:- B N GLOBAL PRIVATE LIMITED [Active] CIN = U15400PB2014PTC038543

Company & Directors' Information:- V - RETAIL PRIVATE LIMITED [Active] CIN = U52300TG2009PTC063445

Company & Directors' Information:- STANDARD CORPORATION INDIA LIMITED [Active] CIN = U29211PB1999PLC022397

Company & Directors' Information:- K V GLOBAL PRIVATE LIMITED [Active] CIN = U24100DL2014PTC263567

Company & Directors' Information:- GLOBAL CORPORATION LIMITED [Active] CIN = L74999DL1992PLC048880

Company & Directors' Information:- M S RETAIL PRIVATE LIMITED [Active] CIN = U52341KA2009PTC049097

Company & Directors' Information:- T & I GLOBAL LTD. [Active] CIN = L29130WB1991PLC050797

Company & Directors' Information:- K G GLOBAL PRIVATE LIMITED [Active] CIN = U74999DL2000PTC104788

Company & Directors' Information:- A TO Z RETAIL LIMITED [Active] CIN = U52190MH2005PLC155766

Company & Directors' Information:- STANDARD RETAIL PRIVATE LIMITED [Active] CIN = U51101MH2010PTC202778

Company & Directors' Information:- A. V. GLOBAL CORPORATION PRIVATE LIMITED [Active] CIN = U63090DL2007PTC159315

Company & Directors' Information:- V T CORP PRIVATE LIMITED [Active] CIN = U29253MH2010PTC199851

Company & Directors' Information:- A N GLOBAL LIMITED [Active] CIN = U92110MH1985PLC035269

Company & Directors' Information:- D S GLOBAL PRIVATE LIMITED [Active] CIN = U74899DL1995PTC071516

Company & Directors' Information:- S D RETAIL PRIVATE LIMITED [Active] CIN = U52520GJ2004PTC056076

Company & Directors' Information:- A B C GLOBAL PRIVATE LIMITED [Active] CIN = U51909PB2011PTC035103

Company & Directors' Information:- A & M RETAIL PRIVATE LIMITED [Active] CIN = U52100TG2012PTC080504

Company & Directors' Information:- I A T GLOBAL COMPANY PRIVATE LIMITED [Active] CIN = U24116DL1997PTC084916

Company & Directors' Information:- J D GLOBAL PRIVATE LIMITED [Active] CIN = U51909DL1997PTC091270

Company & Directors' Information:- S. H. RETAIL PRIVATE LIMITED [Active] CIN = U52100DL2010PTC199889

Company & Directors' Information:- B N G GLOBAL INDIA LIMITED [Active] CIN = U52590DL2011PLC225377

Company & Directors' Information:- N K COMPANY (GLOBAL) PRIVATE LIMITED [Active] CIN = U52390WB2010PTC153624

Company & Directors' Information:- K B K GLOBAL PRIVATE LIMITED [Active] CIN = U24296DL2016PTC290487

Company & Directors' Information:- M & D GLOBAL PRIVATE LIMITED [Active] CIN = U31101UP1974PTC003937

Company & Directors' Information:- V R GLOBAL PRIVATE LIMITED [Active] CIN = U45200WB2007PTC120797

Company & Directors' Information:- M M GLOBAL PRIVATE LIMITED [Strike Off] CIN = U29120WB1986PTC041280

Company & Directors' Information:- R V GLOBAL PRIVATE LIMITED [Active] CIN = U74990MH2009PTC195301

Company & Directors' Information:- M M C GLOBAL INDIA PRIVATE LIMITED [Strike Off] CIN = U11200MH2010PTC206910

Company & Directors' Information:- S R GLOBAL PRIVATE LIMITED [Strike Off] CIN = U51109WB1997PTC084553

Company & Directors' Information:- H V GLOBAL PRIVATE LIMITED [Active] CIN = U18101DL2000PTC103960

Company & Directors' Information:- R P GLOBAL PRIVATE LIMITED [Strike Off] CIN = U74990MH2009PTC193409

Company & Directors' Information:- M S GLOBAL PRIVATE LIMITED [Active] CIN = U70100MH2008PTC213273

Company & Directors' Information:- R S V GLOBAL LIMITED [Strike Off] CIN = U51909DL1994PLC059032

Company & Directors' Information:- V G RETAIL PRIVATE LIMITED [Strike Off] CIN = U52300TG2009PTC065574

Company & Directors' Information:- R D RETAIL INDIA PRIVATE LIMITED [Active] CIN = U52100DL2012PTC235004

Company & Directors' Information:- N B GLOBAL (INDIA) PRIVATE LIMITED [Active] CIN = U15122UP2012PTC051614

Company & Directors' Information:- M S N RETAIL PRIVATE LIMITED [Active] CIN = U52190KA2020PTC137203

Company & Directors' Information:- D & T RETAIL PRIVATE LIMITED [Strike Off] CIN = U74900HR2015PTC055569

Company & Directors' Information:- S & B RETAIL PRIVATE LIMITED [Under Process of Striking Off] CIN = U74120MH2015PTC266050

Company & Directors' Information:- N. S. RETAIL INDIA PRIVATE LIMITED [Active] CIN = U52609DL2017PTC310030

Company & Directors' Information:- A A RETAIL (INDIA) PRIVATE LIMITED [Strike Off] CIN = U74900GJ1991PTC016073

Company & Directors' Information:- G K RETAIL PRIVATE LIMITED [Active] CIN = U15202DL2007PTC171738

Company & Directors' Information:- C F O RETAIL (INDIA) PRIVATE LIMITED [Active] CIN = U51909MH2003PTC140364

Company & Directors' Information:- C-3 RETAIL PRIVATE LIMITED [Strike Off] CIN = U52190WB2010PTC151458

Company & Directors' Information:- S M RETAIL PRIVATE LIMITED [Strike Off] CIN = U51494OR2008PTC010261

Company & Directors' Information:- S CORP PRIVATE LIMITED [Strike Off] CIN = U74900TN2011PTC083426

Company & Directors' Information:- R. B. RETAIL LIMITED [Strike Off] CIN = U51109WB2008PLC123637

Company & Directors' Information:- M M RETAIL PRIVATE LIMITED [Active] CIN = U52599DL2007PTC157838

Company & Directors' Information:- G.S. AND CO. PRIVATE LIMITED [Active] CIN = U51109DL1997PTC085193

Company & Directors' Information:- W 1 RETAIL PRIVATE LIMITED [Strike Off] CIN = U52322DL2010PTC209103

Company & Directors' Information:- D K RETAIL PRIVATE LIMITED [Strike Off] CIN = U52399BR2011PTC016439

Company & Directors' Information:- S. S. T. B. RETAIL PRIVATE LIMITED [Active] CIN = U52600MH2018PTC305554

Company & Directors' Information:- J S RETAIL PRIVATE LIMITED [Strike Off] CIN = U52399PN2008PTC131786

Company & Directors' Information:- G & A RETAIL PRIVATE LIMITED [Strike Off] CIN = U74994MH2011PTC219515

Company & Directors' Information:- R K D RETAIL PRIVATE LIMITED [Strike Off] CIN = U74999MH2014PTC253224

Company & Directors' Information:- A M GLOBAL PRIVATE LIMITED [Active] CIN = U74999MH2015PTC261061

Company & Directors' Information:- M & A CORP PRIVATE LIMITED [Active] CIN = U74120MH2012PTC233794

Company & Directors' Information:- L S A GLOBAL INDIA PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098308

Company & Directors' Information:- R L GLOBAL INDIA PRIVATE LIMITED [Strike Off] CIN = U52300HP2014PTC000764

Company & Directors' Information:- F T RETAIL PRIVATE LIMITED [Active] CIN = U52100DL2015PTC279351

Company & Directors' Information:- B K S RETAIL PRIVATE LIMITED [Strike Off] CIN = U52300DL2010PTC211307

Company & Directors' Information:- I. V. RETAIL PRIVATE LIMITED [Strike Off] CIN = U52390HR2009PTC039614

Company & Directors' Information:- G R GLOBAL PRIVATE LIMITED [Active] CIN = U70102KA2013PTC069586

Company & Directors' Information:- H. E. GLOBAL PRIVATE LIMITED [Active] CIN = U72901GJ2016PTC092866

Company & Directors' Information:- A-1 STANDARD PRIVATE LIMITED [Strike Off] CIN = U16000MH1998PTC114505

Company & Directors' Information:- A K M RETAIL PRIVATE LIMITED [Strike Off] CIN = U52599DL2006PTC150947

    Commercial Arbitration Petition (L) Nos. 404 of 2020, 406 of 2020, 405 of 2020, 408 of 2020 & 407 of 2020

    Decided On, 08 April 2020

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE A.A. SAYED

    For the Petitioners: S. B. Deshmukh a/w. Uttam Rane, Advocates. For the Respondents: R1, Vineet Naik, Senior Advocate a/w. Mohit Arora a/w. Rajat T. i/b. Tuli and Co., Ameya Gokhale a/w. Veena Sivaramakrishnan a/w. Vaibhav Singh i/b. Shardul Amarchad Mangaldas & Co., R3, Akshay Kolse-Patil a/w. Avinav Mukharjee i/b. Kochar & Co., Advocates.



Judgment Text


P.C.:

1. The above Petitions have been filed under section 9 of the Arbitration and Conciliation Act seeking directions restraining the Respondent–Bank from negotiating/ encashing the Letters of Credit.

2. It is the case of the Petitioners that in view of the COVID-19 pandemic and the lockdown declared by the Central/State Government, its contracts with Respondent No. 1 were terminated as unenforceable on account of frustration, impossibility and impracticability. The Petitioners have relied upon Section 56 of the Indian Contract Act, 1972.

3. Under the Contracts the Respondent No. 1 which has its head office at South Korea was to supply certain steel products, the shipments of which were to be dispatched from South Korea, to the Petitioners at Mumbai. The contracts were subject to General Terms and Conditions, Articles 11 and 12 whereof read as follows:

“Article 11. Force Majeure: In the event of an Act of God (including but not limited to floods, earthquake, typhoons, epidemics and other natural calamities), war or armed conflict or serious threat of the same, government order or regulation, labor dispute or any other similar cause beyond the control of “Seller” or any of its suppliers or sub-contractors which seriously affects the ability of “Seller” or any of its suppliers or sub-contractors to manufacture and deliver the “Goods”, “Seller” may, at its sole discretion and upon written notice to “Buyer” either terminate the Contract or any portion affected thereof by such event(s), or delay performance of the Contract, in whole or in part, for a reasonable period of time. Any such delay of performance by “Seller” shall not preclude “Seller’s” later right to terminate the Contract or any portion affected thereof by such event(s). In no event shall “Seller” be liable to “Buyer” or to any third party for any costs or damages arising indirectly or consequentially from such non-fulfillment of or delay in the performance of all or part of the Contract”

Article 12. Governing Law & Arbitration: The Contract shall be governed by and construed in accordance with the Laws of Kerea/Singapore/London. All disputes, controversies or differences which may arise between the parties, out of or in relation to or in connection with the Contract, or for the breach thereof, shall be finally settled by arbitration in Seoul, Korea/Singapore/London in accordance with the Commercial Arbitration Rules of the respective Commercial Arbitration Board and under the Laws of Korea/Singapore/London. The award rendered by the arbitration shall be final and binding upon both parties concerned.”

4. Having heard learned Counsel for the Petitioners and learned Senior Counsel for the Respondent No. 1 (in the first 3 Petitions), Learned Counsel for the Respondent No. 1 (in the last 2 Petitions), the learned Counsel for the Respondent No. 3-Bank (in the first 3 Petitions), in my view the Petitioners are not entitled to any ad-interim reliefs for the reasons stated herein-below:

a. The Letters of Credit are an independent transaction with the Bank and the Bank is not concerned with underlying disputes between the Petitioners who are buyers and the Respondent No. 1 who is the seller.

b. The Force Majeure clause in the present contracts is applicable only to the Respondent No. 1 and cannot come to the aid of the Petitioners.

c. The contract terms are on Cost and Freight basis (CFR) and the Respondent No. 1 has complied with its obligations and performed its part of the contracts and the goods have been already shipped from South Korea. The fact that the Petitioners would not be able to perform its obligations so far as its own purchasers are concerned and/or it would suffer damages, is not a factor which can be considered and held against the Respondent No. 1.

d. The Notifications/Advisories relied upon by the learned Senior Counsel for the Respondent No. 1 does suggest that the distribution of steel has been declared as an essential service. There are no restrictions on its movement and all ports and port related activities including the movement of vehicles and manpower, operations of Container Freight Station and warehouses and offices of Custom Houses Agents have also been declared as essential services. The Notification of the Director General of Shipping, Mumbai, states that there would be no container detention charges on import and export shipments during the lockdown period.

e. In any event, the lockdown would be for a limited period and the lockdown cannot come to the rescue of the Petitioners so as to resile from its contractual obligations with the Respondent No. 1 of making payment

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s. f. The Judgments relied upon by the learned Counsel for the Petitioner in Energy Watchdog Verus CERC (2017) 14 SCC 80 and Satyabrata Ghose Versus Mugneeram Bangure & Co. (1954) SCR 310 do not assist the case of the Petitioners and are distinguishable on facts. 5. In the light of the above, ad-interim reliefs shall stand rejected. 6. List the Petitions as per CMIS date. 7. All concerned to act on the ordinary copy of this order duly authenticated by the Personal Assistant.
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