Gujarat High Court
Van Oil Petroleum Ltd vs Mv Denali (Imo No 8438016)(Ex Name Mv ... on 11 May, 2018
Author: M.R. Shah
Bench: M.R. Shah, A.Y. Kogje
C/OJA/15/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/O.J.APPEAL NO. 15 of 2018
in
CIVIL APPLICATION (OJ) NO. 1 of 2018
in
ADMIRALITY SUIT NO. 12 of 2018
with
CIVIL APPLICATION (OJ) NO. 1 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/-
and
HONOURABLE MR.JUSTICE A.Y. KOGJE sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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VAN OIL PETROLEUM LTD
Versus
MV DENALI (IMO NO 9438016) (EX NAME MV MARIE PAULE)
==========================================================
Appearance:
MR KAMAL B TRIVEDI, SENIOR ADVOCATE WITH MS PAURAMI B SHETH(841),
ADVOCATE, for the APPELLANT
MR MIHIR THAKORE, SENIOR ADVOCATE WITH MR AS VAKIL(962), ADVOCATE, for the
RESPONDENT
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 11/05/2018
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) Page 1 of 27 C/OJA/15/2018 CAV JUDGMENT
1. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Commercial Division Judge, High Court, dated 03.05.2018, passed in Civil Application (OJ) No.1/2018 in Admiralty Suit No.12/2018, by which the learned Judge has allowed the said application and has rejected the Plaint under order VII Rule 11(d) of the Code of Civil Procedure, 1908 ("the CPC" for short), the original plaintiff has preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as under:
2.1 That the appellant - original plaintiff (hereinafter referred to as "the original plaintiff") had instituted Admiralty Suit No.12/2018 before this Court for the following reliefs:
"a. That this Hon'ble Court be pleased to pass an order and decree in favour of the Plaintiff and against the Defendant Vessel MV DENALI (IMP No:9438016) (ex-name - MV Marie - Paule) and/or her master and/or her owners and/or managers and/or operators and/or all persons interested in her in the sum of principal amount of USD 975,600 and annual interest of 5% from due date of each Invoice till filing of the present Plaint being USD 326,965 from due date of invoice till date and USD Page 2 of 27 C/OJA/15/2018 CAV JUDGMENT 20,000 for cost of litigation in India aggregating UDS 1,322,565 with further interest at the rate of 5% per year from date of suit till its realization as per particulars of claim;
b. that the Defendant vessel MV DENALI (IMO No.:9438016) (ex-name - MV Marie - Paule) together with her hull, engines, gears, tackles, bunkers machinery, apparel, plant, furniture, fixtures, appurtenances and paraphernalia, plant and machinery at present lying at Navlakhi Port, or wherever she is within the territorial waters of India be arrested by a Warrant of Arrest of this Hon'ble Court and the same be condemned in respect of the Claim herein and be ordered to be sold along with her hull, engines, gears, tackles, bunkers machinery, apparel, plant, furniture, fixtures, appurtenances and paraphernalia and the net sale proceeds thereof be ordered to be applied to the satisfaction of the Plaintiff's claim herein and the cost of this Suit;
c. That pending the hearing and final disposal of the Suit, this Hon'ble Court be pleased to order and direct the arrest of the Defendant Vessel MV DENALI (IMO No: 9438016) (ex-name - MV Marie- Paule) along with her hull, engines, gears, tackles, bunkers machinery, apparel, plant, furniture, fixtures, appurtenances and paraphernalia, Plant and Machinery at present lying at the Port of Navlakhi or wherever she is within the territorial Page 3 of 27 C/OJA/15/2018 CAV JUDGMENT waters of India until the satisfaction of the Plaintiff's claim as per Particulars of and also be committed for sale and the same be sold under the Orders and directions of this Hon'ble Court and the sale proceeds thereof be utilized in satisfaction of the Plaintiff's claim herein."
2.2 That the plaintiff preferred the aforesaid suit for the following claims:
Sr No Particulars Amount (In USD)
1 Principal Amount due as per the invoice 975600
2 Interest 326965
3 Legal Costs 20000
Total Amount Receivable 1322565
United States Dollars One Million Three Hundred Twenty-Two
Thousand Five Hundred Sixty Five only.
ADD: 5% interest per annum on principal claim of USD 975,600 from the date of the present suit till its payment and/or realization. 2.3 That by an exparte order dated 06.04.2018, the learned Single Judge passed an order of arrest of the defendant-Vessel. Having served with the order of arrest, the defendant appeared and submitted an application and requested to reject the Plaint, as provided under Order VII Rule 11 (a)(d) of the CPC.
2.4 It was submitted on behalf of the defendant that even as averred in the Plaint and even according to the plaintiff, the Bunkers were supplied by the plaintiff as per the contract on or Page 4 of 27 C/OJA/15/2018 CAV JUDGMENT around 18.01.2012 and that on 29.02.2012, the erstwhile owner of the Vessel acknowledged and admitted the outstanding amount for supply of Bunkers to the defendant Vessel. It was submitted that even as per the record as it stands, the last date of acknowledgment is 29.03.2012 and therefore, even considering the averments made in the Plaint and the material on record along with the suit, the suit is barred by law of limitation. According to the defendant, as provided under Section 11 of the Limitation Act, 1963 ("the Limitation Act" for short), the Limitation Act is applicable in India, i.e. the country of the forum would apply on the applicability of the principles of lex fori. Therefore, it was contended that as provided under Article 15 of Schedule-I to the Limitation Act, the limitation as provided under the Act would be three years. It was submitted that therefore, as the last acknowledgment was dated 29.03.2012, the suit is time- barred.
2.5 It was further submitted that even if the English Limitation Act, 1980, is applied, as the suit is filed on 06.04.2018 and the last acknowledgment is dated 29.03.2012, therefore also, the last date available under the English law would be 28.03.2018 and therefore, admittedly, the Plaint is ex facie time barred.
Page 5 of 27 C/OJA/15/2018 CAV JUDGMENT 2.6 That the said application was vehemently opposed by the original plaintiff. It was the case on behalf of the original plaintiff that the question of limitation is a mixed question of law and fact and till the evidence is led, such determination is not possible and therefore, the said application to reject the Plaint under Order VII Rule 11(d) of the CPC deserves to be rejected.
2.7 It was further submitted on behalf of the plaintiff that the Bunkers were supplied as per the contract and parties had agreed to be covered by the law of England. It was further submitted that exclusion of any other law is clearly provided and the parties have voluntarily chosen to the law of England and that there is an express agreement between the parties and more particularly, as provided under Clause 22(1) of the contract. It was further submitted that therefore, whether the Limitation Act of England would apply or the Indian Limitation Act would apply is a question which requires to be determined after leading of evidence.
2.8 It was further submitted on behalf of the plaintiff that the plaintiff has pleaded fraud and the date of knowledge of fraud is a matter of evidence and today, it cannot be said that it is barred by limitation and it will have to be tried and cannot be Page 6 of 27 C/OJA/15/2018 CAV JUDGMENT decided in the application for rejection of Plaint. 2.9 That after considering the rival submissions made by learned counsel for the respective parties and considering the averments in the Plaint, by impugned order, the learned Judge has allowed the application preferred by the original defendant and has rejected the Plaint under Order VII Rule 11(d) of the CPC by observing that reading of the averments in the Plaint and assuming that the law of England and/or English Limitation Act shall be applicable, in that case also, the suit is clearly barred by law of limitation.
2.10 Feeling aggrieved and dissatisfied by the impugned order passed by the learned Judge, Commercial Division, High Court, in rejecting the Plaint under Order VII, Rule 11(d) of the CPC, the original plaintiff has preferred the present appeal.
3. Shri Kamal B. Trivedi, learned Senior Advocate has appeared on behalf of the plaintiff and Shri Mihir Thakore, learned Senior Advocate has appeared on behalf of the original defendant.
4.0 Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the original plaintiff has vehemently submitted that in the facts and circumstances of the case, the learned Judge Page 7 of 27 C/OJA/15/2018 CAV JUDGMENT has materially erred in rejecting the Plaint under Order VII Rule 11(d) of the CPC on the ground that the suit is barred by law of limitation.
4.1 It is vehemently submitted by Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the original plaintiff that while rejecting the Plaint at this stage, the learned Judge has not properly appreciated the fact that the question of limitation is a mixed question of law and facts and unless and until the parties lead the evidence, the Plaint could not have been rejected at the threshold in exercise of powers under Order VII Rule 11(d) of the CPC.
4.2 It is further submitted by Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the original plaintiff that as observed by the Hon'ble Supreme Court in the case of Popat And Kotecha Property v. State Bank of India Staff Association reported in (2005)7 SCC 510, the real object of Order VII Rule 11(d) is to keep out of courts irresponsible law suits and the Plaints in exercise of powers under Order VII Rule 11(d) of the CPC can be rejected only in case the Court is prima facie of the view that the suit is an abuse of the process of the Court in the sense that it is a bogus and irresponsible litigation. It is submitted that in the present case, admittedly, Page 8 of 27 C/OJA/15/2018 CAV JUDGMENT the plaintiff supplied Bunkers to the Vessel and it was a maritime claim and therefore, the claim in the suit cannot be said to be bogus and/or frivolous and/or meritless which warrants rejection of the Plaint at the threshold and in exercise of powers under Order VII Rule 11(d) of the CPC.
In support of his above submission, Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the original plaintiff, has heavily relied upon the following decisions of the Hon'ble Supreme Court:
(i) Popat And Kotecha Property v. State Bank of India Staff Association (supra) - (Paragraph-20)
(ii) Balasaria Construction (P) Ltd. v. Hanuman Seva Trust And Others reported in (2006)5 SCC 658 (Paragraph-8)
(iii) Ram Prakash Gupta v. Rajiv Kumar Gupta And Others reported in (2007)10 SCC 59
(iv) Sopan Sukhdeo Sable And Others v. Assistant Charity Commissioner And Others reported in (2004)3 SCC 137 (Paragraphs-13, 15 and 16) 4.3 It is further submitted by Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the original plaintiff that even otherwise, whether the Indian Limitation act shall be applicable or the English Law of Limitation shall be applicable is a question of law which is required to be considered at the Page 9 of 27 C/OJA/15/2018 CAV JUDGMENT time of trial and on leading the evidence. It is submitted that therefore, at this stage, the learned Single Judge ought not to have rejected the Plaint under Order VII Rule 11(d) of the CPC on the ground that the suit is barred by law of limitation.
4.4 It is further submitted by Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the original plaintiff that even otherwise, when there are specific averments of fraud averred in the Plaint, considering Section 17 of the Limitation Act, the period of limitation till the date of knowledge of the fraud is to be excluded. It is submitted that the aforesaid is a question of fact and the said issue is required to be considered, more particularly, exclusion of period of limitation under Section 17 of the Limitation Act only after the parties lead the evidence. It is submitted that therefore also, the learned Single Judge has materially erred in rejecting the Plaint at the threshold in exercise of powers under Order VII Rule 11(d) of the CPC.
4.5 Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the original plaintiff has submitted that the learned Single Judge has materially erred in relying upon the decision of the learned Single Judge of this Court in the case of Kanjibhai Bhagwanjibhai Patel v. Nanduben Shamjibhai Page 10 of 27 C/OJA/15/2018 CAV JUDGMENT Sorathiya Through POA Dharmesh P. Trivedi & Ors. reported in 2013(1) GLR 51. It is submitted that the said decision shall not be applicable to the facts of the case on hand inasmuch as in the said case, considering the averments in the Plaint and undisputed facts, the suit was found to be time-barred and therefore, the Plaint was rejected under Order VII Rule 11(d) of the CPC.
4.6 Making above submissions, it is requested to allow the present appeal 5.0 Present appeal is vehemently opposed by Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the original defendant.
5.1 Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the original defendant has raised a preliminary objection that the present appeal is not on the proper Court fees. It is submitted that when the impugned order is passed and the Plaint is rejected, the same tantamounts to a decree and therefore, the plaintiff is required to pay the Court fees as if an appeal is preferred against the decree, i.e. Rs.75,000/- (maximum) and the Court fee which is paid is Rs.20/- only and therefore, the present appeal is liable to the dismissed on this Page 11 of 27 C/OJA/15/2018 CAV JUDGMENT ground alone.
5.2 It is vehemently submitted by Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the original defendant that in the facts and circumstances of the case and considering the averments in the Plaint as they are, the suit is clearly barred by law of limitation and therefore, the learned Judge has rightly rejected the Plaint under Order VII Rule 11(d) of the CPC.
5.3 It is further submitted by Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the original defendant that assuming without admitting that the English Law of Limitation would apply, in that case also, the period of limitation even as per English Limitation Act shall expire on 28.03.2018 and the suit has been preferred on 06.04.2018 and therefore also, the suit is barred by English Limitation Act. 5.4 It is further submitted by Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the original defendant that even in the Plaint itself, the plaintiff has come out with the case that the last acknowledgment is dated 29.03.2012 and therefore, the period of limitation would start running from 29.03.2012. It is submitted that therefore, even considering Page 12 of 27 C/OJA/15/2018 CAV JUDGMENT the averments in the Plaint as they are, the suit is clearly barred by law of limitation either under the Indian Law of Limitation or under the English Limitation Act. It is submitted that therefore, as such, the learned Single Judge has not committed any error in rejecting the Plaint under Order VII Rule 11(d) of the CPC as the Plaint is ex facie time barred. 5.5 Now so far as the submission on behalf of the plaintiff that as the fraud is alleged and there are averments of fraud in the Plaint and therefore, praying for exclusion of time as per Section 17 of the Limitation Act is concerned, it is submitted by Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the original defendant, that for any subsequent event and/or allegation of fraud with respect to subsequent development after the period of limitation starts running, Section 17 of the Limitation Act shall not be applicable. It is submitted that once the period of limitation starts running, any subsequent act and/or omission would not save the period of limitation. It is submitted that even otherwise, as such, there are no specific averments in the Plaint with respect to fraud at the time of supplying the Bunkers to the Vessel. It is submitted that therefore, the learned Single Judge has rightly rejected the Plaint under Order VII Rule 11(d) of the CPC. Page 13 of 27 C/OJA/15/2018 CAV JUDGMENT 5.6 Making the above submissions and relying upon the following decisions of the Hon'ble Supreme Court, it is requested to dismiss the present appeal:
(i) T. Arivandandam vs. T.V. Satyapal & Anr.
reported in (1977) 4 SCC 467
(ii) Khatri Hotels Pvt. Ltd. v. Union of India reported in (2011)9 SCC 126
(iii) N.V.Srinivasa Murthy And Others v.
Mariyamma (Dead) by Proposed Lrs. And Ors. reported in (2005)5 SCC 548
(iv) Decision of the Division Bench of this Court in the case of Masrur Fatema Jafarali Saiyed & 2 vs. Vishnubhai Ambalal Patel & 44 reported in 2016 SCC Online Guj 5971.
6.0 Heard learned counsel appearing on behalf of the respective parties at length.
6.1 Now so far as the preliminary objection raised on behalf of the defendant, that the present appeal objection that the present appeal is not on the proper Court fees and that when the impugned order is passed and the Plaint is rejected, the same tantamounts to decree and therefore, the plaintiff is required to pay proper the Court fees, is concerned, learned advocate appearing on behalf of the appellant has stated at the Bar that deficient Court fee shall be paid within a period of one week from today.
Page 14 of 27 C/OJA/15/2018 CAV JUDGMENT 6.2 At the outset, it is required to be noted that in the present case, by the impugned order, the learned Judge, Commercial Division, High Court, has rejected the Plaint in exercise of the powers under Order VII, Rule 11(d) of the CPC by specifically observing and holding that the suit is clearly barred by law of limitation and / or time barred. Therefore, the short question which is posed for consideration of this Court is whether in the facts and circumstances of the case, the learned Judge is justified in rejecting the Plaint under Order VII, Rule 11(d) of the CPC?
6.3 At this stage the decision of the Division Bench of this Court in the case of Masrur Fatema Jafarali Saiyed vs. Vishnubhai Ambalal Patel (supra) is required to be considered and referred to. The Division Bench of this Court in the aforesaid case, in paras 55, 56, 57 and 60 has observed and held as under:
"55. Before considering the present appeal on merits, few decision of the Hon'ble Supreme Court as well as this Court on Order 7 Rule 11 of the Code of Civil Procedure are required to be referred to and considered.
56. In the case of T. Trivandam v. T.V. Satyapal reported in (1977) 4 SCC 467 while considering the Page 15 of 27 C/OJA/15/2018 CAV JUDGMENT very same provision i.e. Order 7 Rule 11 of the Code of Civil Procedure and the decree of trial Court in considering the such application, the Hon'ble Supreme Court in para 5 has observed and held as under:
"We have not the slightest hesitation in condemning the petitioner for gross abuse of the process of the Court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11, C.P.C., taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits.
57. In the case of The Church of Christ Charitable Trust and Educational Charitable Society vs. M/s. Ponniamman Educational Trust reported in AIR 2012 SC 3912, in para 8 to 10 has observed and held as under:
8. While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is Page 16 of 27 C/OJA/15/2018 CAV JUDGMENT worthwhile to find out the meaning of the words "cause of action". A cause 9 Page 10 of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue.
9. In A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem (1989) 2 SCC 163 : (AIR 1989 SC 1239), this Court explained the meaning of "cause of action" as follows:
"12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
10. It is useful to refer the judgment in Bloom Dekor Ltd. v. Subhash Himatlal Desai and Ors. (1994) 6 SCC 322, wherein a three Judge Bench of this Court held as under:
"28. By "cause of action" it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court, (Cooke v. Gill, 1873 LR 8 CP 107). In other words, a bundle of facts which it is necessary for the Page 17 of 27 C/OJA/15/2018 CAV JUDGMENT plaintiff to prove in order to succeed in the suit."
It is mandatory that in order to get relief, the plaintiff has to aver all material facts. In other words, it is necessary for the plaintiff to aver and prove in order to succeed in the suit.
60. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid decisions and applying the same to the facts of the case on hand, for the reasons below stated, we are of the opinion that the learned trial Court has rightly rejected the plaint under Order VII Rule 11(d) of the Code of Civil Procedure."
6.4 It cannot be disputed that while considering the application under Order VII, Rule 11 of the CPC, at that stage, the averments in the Plaint and/or the pleadings in the Plaint and the documents produced along with the Plaint alone are required to be considered. Therefore, what is required to be considered is whether after examining the pleadings of the Plaint and considering the averments / pleadings and in the Plaint as they are, the suit can be said to be barred by law of limitation which requires rejection in exercise of the powers under Order VII Rule 11(d) of the CPC?
6.5 While considering the aforesaid question/ issue, the necessary averments in the pleadings of the Plaint and the Page 18 of 27 C/OJA/15/2018 CAV JUDGMENT cause of action pleaded are required to be considered. The necessary pleadings in the Plaint in Paragraphs 3, 4, 6, 8, 9 and 11, 12 and 24 read as under:
"3. The Plaintiff's entitlement to the outstanding sums arise by reason of the Plaintiff having provided bunkers to the Vessel MV DENALI (IMO No.:9438016) (IMO No: 9438016) (ex-name - MV Maria-Paule). The said Vessel was supplied bunkers at the request of the said vessel through Allied Maritime INC, who were authorized representatives of erstwhile owners of the vessel i.e. Citrus Shipping Corp. Thereafter, to defeat the claim of the Plaintiff, the vessel has changed the name and ownership twice:
a. MV Ermis, during February 2014 registered owner of the vessel was Ermis Trading SA.
b. MV Denali, since December 2015 registered owner of the vessel is Denali Shippling LP.
It is submitted, that the vessel has undergone change in name and ownership with sole aim to defeat Plaintiff's claim and claims of other identically situated creditors. The said registered owners of the vessel are alter-egos and enjoy identity and commonality of interest and functional integrity with each other, and are in law and effect, one entity, only incorporated with an intentino to defraud their creditors. The same is evident from the Equasis Report. It is submitted that, even otherwise the Vessel MV Denali (IMO No: 9438016) (ex-name - MV Marie-Paule) is in rem responsible for the outstanding payments of the Plaintiff towards supply of bunkers which were used by her during her voyages.
4. By this suit, the Plaintiff seeks judgment and decree against the Defendant Vessel and the arrest, sequestration, condemnation and sale of the Defendant Vessel, for securing and/or satisfying the Page 19 of 27 C/OJA/15/2018 CAV JUDGMENT Plaintiff's claim of principal amount of USD 975,600 and annual interest of 5% from due date of each Invoice till filing of the present Plaint being USD 326,965 from due date of invoice till date and USD 20,000 for cost of litigation in India aggregating USD 1,322,565 with furtehr interest at the rate of 5% per year from date of suit till its realization as per particulars of claim. The Plaintiff is entitled to receive the said amounts, as summarized hereinbelow, having supplied bunkers to the Defendant Vessel as more particularly set out hereinbelow. The Defendant Vessel has used and/ or consumed and/or benefitted from the said bunkers and/or have availed of the same for prosecuting her voyages. The Plaintiff has, however, not been paid in respect of the said bunkers supplied. The Plaintiff has therefore been constrained to file the presnt suit.
6. On or around 18th January 2012,the Owners and/or Managers and/or charterers and/or Vessel and/or any other entity authorized by the owner of MV DENALI (IMO No.9438016) (ex-name - MV Marie-
Paule) approached the Plaintiff, on behalf of the Vessel and/or master and/or owners and/or charterers and/or managers and/or operators for supply of 1,300 Mts of fuel oil grade 380-CST (hereinafter referred to as "Bunkers") to the said Vessel at Calloa Anchorage, Peru on around 22nd January 2012. The Bunker Contract Confirmation was issued to the Plaintiff through their physical supplied Van Oil S.A.A. Bunker Contract Confirmation bearing refernce No.0012-12B/C was issued by Easy Street Limited on behalf of the Owners and/or Managers and/or charterers and/or Vessel and/or any other entity authorized by the owner of MV DENALI (IMO No: 9438016) (ex-name- MV Marie - Paule) in name of the Plaintiff...
8. On 1st February, 2012, the Plaintiff supplied 1,300 Mts of IFO to the Vessel MV DENALI (IMO No:
9438016) (ex-name - MV Marie-Paule) at Callao Port, Bunker Delivery Note bearing No.4325 was issued for the said supply. The Bunker Delivery Note provided that the marine fuel was delivered in accordance with Standard Terms and Conditions of Page 20 of 27 C/OJA/15/2018 CAV JUDGMENT Sale and on credit of the Vessel. It further provided that any disclaimer to creation of maritime lien will be null and void. The Bunkers were accepted without raising any protest and/or demur by Master/ Chief Engineer. The Bunker Delivery Note was duly acknowledged by the Master/Chief Engineer on behalf of the Vessel MV DENALI (IMO No:9438016) (ex-name - MV Marie-Paule) by endorsing uopn the Bunker Delivery Note...
9. On the same day, the Plaintiff issued an invoice bearing No.4325 for the bunkers supplied on account of the Respondent and/or the vessel and/or master and/or owners and/or charterers and/or managers and/or operators for an amount of USD 975,600/ The Invoice provided that the due date for payment of invoice was 2nd March 2012. The Invoice read with Sale Order Confirmation and applicable terms and conditions of supply, provided that payments made beyond the due date would be charged annual interest @ 5% and Respondent and the Vessel would be liable for other costs and charges...
11. On 29th February, 2012, the erstwhile owners of the vessel acknowledged and admitted the outstanding amount for the supply made and assured the Plaintiff that the apyments will be shortly made. They also informed the Plaintiff that due to financial difficulties the company was unable to pay the outstanding.....
12. Despite acknowledgement of liability and acknowledgement of the fact that bunkers were supplied, the Plaintiff has not received the outstanding amount.
24. No part of the cause of action is barred by limitation as the cause of action arose in 2012, when the invoice for the supply of bunkers fell due. The Plaintiff's General Terms and Conditions for sale of the Marine Fuel provides that the supply was governed by English Law. The English Limitation Act, 1980, Section 5 provides that "an action founded on simple contract shall not b Page 21 of 27 C/OJA/15/2018 CAV JUDGMENT ebrought after the expiration of six years from the date on which the casue of action accrued". Under the law governing the terms of supply, the Plaintiff is entitled to proceed against the Defendant Vessel."
6.6 Therefore, considering the averments and pleadings in the Plaint, even according to the plaintiff, the last acknowledgment was on 29.03.2012. Therefore, the limitation started running from 29.03.2012. Even in Paragraph-24, while pleading cause of action, it is specifically stated by the plaintiff that the cause of action arose in 2012. But by clever drafting, it is not stated from which date in the year 2012 the period of limitation started running. The only case on behalf of the plaintiff is that the cause of action arose in 2012 when the invoice for the supply of Bunkers fell due and that as per the general terms and conditions for sale of maritime fuel, the supply was governed by English law and the English Limitation Act, 1980, Section 5, provides that "an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued". Therefore, assuming that the English Limitation Act, 1980, shall be applicable, in that case also, considering the starting point of limitation from 29.03.2012, even applying the English Limitation Act which provides six years' time limit, in that case also, the period of limitation would expire on 28.03.2018. It is Page 22 of 27 C/OJA/15/2018 CAV JUDGMENT an admitted position that the suit has been preferred on 06.04.2018. Therefore, the same is clearly barred by law of limitation. Therefore, even considering the averments in the Plaint as they are, the suit is clearly barred by law of limitation even as per the English Limitation Act, 1980.
7. Now so far as the submission on behalf of the plaintiff that as fraud is alleged, and therefore, considering Section 17 of the Limitation Act, the period till the knowledge of the fraud is required to be excluded is concerned, at the outset, it is required to be noted that on one hand, even according to the plaintiff also, the Indian Limitation Act shall not be applicable. Even otherwise, on merits, the aforesaid has no substance. Even considering the averments in the Plaint, except the bare averments in Paragraph-3, there are no further averments / particulars of fraud. It is required to be noted that even the fraud is alleged not at the time of the transaction but it is alleged with respect to the subsequent transfer of the Vessel. Therefore, the fraud is not as such alleged at the time of entering the transaction for supply of Bunker. There are no such pleadings or allegations in the Plaint at all. As observed by the Division Bench of this Court in the case of Ullasbhai Parsottambhai (Legal heirs of decd.) and Ors. vs. Patel Dineshbhai Ramabhai reported in 2014 (1) GLR 596, in Page 23 of 27 C/OJA/15/2018 CAV JUDGMENT order to make out a case of fraud or coercion, all the material facts in support of such allegations must be laid out in full and with a high degree or precision. In the aforesaid decision, in Paragraphs-76 and 77, it is observed and held as under:
"76. It is a plain and basic rule of pleadings that in order to make out a case of fraud or coercion there must be (a) an express allegation or fraud, and (b) all the material facts in support of such allegations must be laid out in full and with a high degree of precision. In other words, if coercion or fraud is alleged, it must be set out with full particulars. (See Shanti Budhiya Vesta Patel v. Nirmala Jayprakash Tiwari, reported in 2010(5) SCC 104)
77. In Bishundeo Narain v. Seogeni Rai, reported in AIR 1951 SC 280, it was held thus:
24. We turn next to the questions of undue influence and coercion. Now, it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate and separable categories in law and must be separately pleaded.
It is also to be observed that no proper particulars have been furnished. Now, if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice, however, strong the language in which they are couched may be, and the same applies to undue influence and coercion. (See Order 6, Rule 4 of the Code of Civil Procedure)"
Page 24 of 27 C/OJA/15/2018 CAV JUDGMENT
7.1 In the case of Mohanbhai Maganbhai Patel vs. Miral Vallabhbhai Surani reported in 2016 JX (Guj) 1290, a Division Bench of this Court has observed and held that the particulars about alleged fraud must be stated in the pleadings. It is further observed that pleading has to claim a statement in a concise form of material facts on which the party relies for his claim or defence.
8. At this stage, it is required to be noted that the plaintiff is invoking Section 17 of the Limitation Act and is praying for exclusion of time on the ground of fraud. However, it is required to be noted that fraud as such is alleged in view of the subsequent development of transfer of Vessel from one owner to another owner and there are no allegations and/or pleadings with respect to fraud at the time of entering into transaction of supply of Bunker to the Vessel. As observed hereinabove, the period of limitation would start running from 29.03.2012 even considering the specific averments and pleadings in the Plaint. As per Section 9 of the Limitation Act, when once the time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it. Therefore, even considering Section 9 of the Limitation Act, once the period of limitation has started running from 29.03.2012, any subsequent act or omission on the part of the Page 25 of 27 C/OJA/15/2018 CAV JUDGMENT defendant on the basis of which some fraud is alleged, the period of limitation would not be saved considering Section 17 of the Limitation act, as alleged or contended.
9. At this stage, it is required to be noted that even there are no specific averments and/or pleadings in the Plaint invoking Section 17 of the Limitation Act and praying for exclusion of the time.
10. Therefore, in the facts and circumstances of the case, it cannot be said that the learned Single Judge has committed any error in rejecting the Plaint under Order VII Rule 11(d) of the CPC. We are in complete agreement with the view taken by the learned Judge holding that even considering the averments in the Plaint as they are, the suit clearly barred by law of limitation. Rejection of the Plaint by the learned Single Judge is absolutely in consonance with the object and purpose of Order VII Rule 11 of the CPC.
11. In view of the above and for the reasons stated hereinabove, the present appeal fails and the same deserves to be dismissed. It is, accordingly, dismissed.
In view of the dismissal of the appeal, Civil Application (OJ) No.1/2018 also stands dismissed. sd/-
(M.R. SHAH, J) sd/-
(A.Y. KOGJE, J) Page 26 of 27 C/OJA/15/2018 CAV JUDGMENT FURTHER ORDER:
At this stage, Ms.Paurami B. Sheth, learned advocate appearing for the appellant - original plaintiff, has requested to continue the order of arrest of the defendant-Vessel which was initially granted by the learned Single Judge, so as to enable the plaintiff to challenge the present order before the higher forum. The prayer is vehemently opposed by Shri Apurva Vakil, learned advocate appearing on behalf of the defendant. However, in the facts and circumstances of the case and more particularly when the learned Single Judge while rejecting the Plaint has continued the order of arrest till date, i.e. 11.05.2018, the same is directed to be continued till 18.05.2018.
sd/-
(M.R. SHAH, J) sd/-
(A.Y. KOGJE, J) sunil Page 27 of 27