Bombay High Court
Bank Of Maharashtra vs M.V. 'River Ogbese' A Vessel Registered ... on 6 September, 1989
Equivalent citations: AIR1990BOM107, 1989(3)BOMCR452, AIR 1990 BOMBAY 107, (1989) 3 BOM CR 452 1989 MAH LJ 1037, 1989 MAH LJ 1037
ORDER
1. This Notice of Motion raises a question relating to the practice on the original side of this Court.
2. The ship M. V. 'River Ogbese' was arrested pursuant to the warrant of arrest dated 27th May, 1989. The arrest was "confirmed" by the order dated 30th June, 1989 made on the Plaintiffs' Notice of Motion No. 958 of 1989. This Notice of Motion by the Defendant No. 3 is for an order of release of the ship.
3. The Bank of Maharashtra have instituted this suit for a decree compelling the Defendants to deliver the consignment in accordance with the contract of carriage. The suit was instituted on 10th March, 1989. The Plaintiffs filed an application on 10th March, 1989, for arrest of the ship. It was accompanied by an affidavit in support of the order of arrest. The draft order of arrest was also placed in the proceedings. The Plaintiffs did not press the application for arrest of the ship.
On 10th March 1989, an ad interim order was passed in accordance with the minutes presented by the parties. No order of arrest was made. Nothing happened until 27th May, 1989, when the suit was brought before Kenia, J. by the Defendant No. 3 with a prayer that the Defendant No. 3 be relieved of the-undertaking to keep the vessel in Indian waters at Magdalla, near Surat. The plaintiffs and Advocates were absent. Naturally, the Plaintiffs did not, on that day, apply for having the ship arrested. Kenia, J. ordered that the application of the Defendant No. 3 for being relieved from the undertaking be postponed until all the parties were heard. Nevertheless, the Court on its own, ordered that the ship be arrested. The order reads :--
"I do order that upon the Plaintiffs giving the undertaking in writing to the Admiralty Registrar of this Hon'ble Court to pay such sum by way of damages as this Hon'ble Court may award as compensation in the event of the Defendants and/or any party affected sustaining prejudice by this Order. The Admiralty Registrar of this Hon'ble Court to issue a Warrant of Arrest to the Defendants' ship/vessel "M. V. River Ogbese" ".
Pursuant to this order, a warrant was issued. The order of arrest directs the Plaintiffs to give a written undertaking to the Court. Eventually, the warrant was executed and the ship arrested.
4. On 13th April 1969, the Plaintiffs took out Notice of Motion No. 958 of 1989 and prayed that the vessel be arrested. This Notice of Motion was fully heard and disposed of by an elaborate speaking order dated 30th June, 1989. An order of arrest was made in this Notice too. The judgment records that the order of arrest made on 27th May, 1989, was not only in Admiralty Suit No. 3 of 1989 but also in this suit. In the words of Kenia, J. :--
"I noticed that the Advocates on behalf of the Plaintiffs in Admiralty Suit No. 4 of 1989 were not present before me and as such I passed the Order in both the suits so that at least the Plaintiff in Admiralty Suit No. 3 of 1989 who was represented before me, would be able to obtain the order and if possible, have the same executed."
Thus, the order dated 27th May, 1989 was made without an application by the Plaintiffs.
5. In this Notice of Motion, the Defendant No. 3 seeks to have the arrest made pursuant to both the orders, viz. 27th May, 1989 and 30th June 1989, cancelled or revoked. The only ground urged is that the plaintiffs have not given the undertaking in writing as required by Rule 941 of the Rules of the High Court of Judicature at Bombay on the Original Side. The Plaintiffs oppose the application on two grounds :
(i) R. 941 requires "the party applying under this rule" to give the undertaking in writing. Since the Plaintiffs were not the party who applied for arrest on 27th May, 1989, they are not under an obligation to give the undertaking required by R. 941.
(ii) R. 941, which requires a party applying for arrest to give an undertaking applies only where an ex parte application for arrest is made. Where the Court, upon hearing both the parties makes an order of arrest, R. 941 in so far as it requires the undertaking, has no application.
6. 1 have no doubt that so far as the order of arrest dated 27th May, 1989 is concerned, the Plaintiffs are not the "party applying" under R. 941 for arrest of the ship. Therefore, so far as the order dated 27th May, 1989 is concerned, the Plaintiffs were under no obligation to give the undertaking.
7. The second submission advanced by Mr. Tulzapurkar stems from an assumption that an "ex parte" application alone is an application under R. 941. I sec no such distinction in R.941. Any application for having the ship arrested either ex parte or upon hearing the opposite party, is an application to arrest the property referred to in R. 941. In practice, however, applications for arrest are, in cases of urgency, made ex parte. In other cases they may be made after notice to the opposite party. However the point referred to at (ii) in paragraph No. 5 above has to be considered in the light of certain provisions of the Rules called in aid by learned Counsel for the plaintiffs.
8. Rule 941 contemplates "an application" for the arrest of the property. The Notice to and hearing of the opposite party are elementary rules of fairness which do not detract from the character of the proceedings as "an application".
The Admiralty Suit commences by plaint, signed and verified according to the Code of Civil Procedure. A person who apprehends arrest of the ship or any property shall file a praecipe, that'the caveat be entered against the arrest of the properly which shall be registered in the caveat warrant book. A person desiring to prevent the release of the arrested property may also file caveat requesting that the caveat be entered against the release of the property which shall be entered in the book known as "caveat release book". Any person instituting a suit against any property in respect of which a caveat has been entered in the "Caveat Warrant Book" shall, before filing the plaint, serve a copy of the plaint upon the party on whose behalf the caveat has been entered or upon his advocate or give security in the sum claimed in the suit or pay the same in the registry of the Court within three days. If the person entering the caveat shall not have given security in the sum claimed in the suit or paid the same into registry in accordance with the undertaking required of him under R. 929, the Plaintiff may have the suit set down forthwith for hearing as an undefended suit. Notwithstanding the caveat against arrest, the party may press the application for a warrant of arrest and have the ship arrested.
The mode of invoking the Court's power to arrest the property is laid down in R. 941. The application for arrest of the property shall be supported by an affidavit setting out the nature of the claim and that it has not been satisfied. The application shall also be accompanied by a certificate by the Prothonotary and Senior Master certifying, that no caveat has been filed against the issue of the warrant of arrest of the said property.
9. The application for arrest is no doubt required to be accompanied by the certificate of the Prothonotary and Senior Master that no caveat has been filed. The absence of caveat means absence of the defendant. From this fact, I am asked to infer that-
(a) Rule 941 comes into play only in the absence of a caveat against the issue of a warrant of arrest, and
(b) therefore the rule applies only to cases in which the opposing party is not yet heard on the application.
The answer to this argument is plain. R. 941 may apply even where no caveat has been filed and the Court may order issue of a warrant of arrest before hearing the opposing party. But it does not follow that where the Court hears the defendant before arresting the property, it does not act under R. 941. The certificate of the Prothonotary and Senior Master proving the absence of a caveat is intended to assure the Court that it does not order arrest of property without hearing a party who desires to oppose the application for arrest. Thus, the party who has filed the caveat will have to be heard before the application for arrest is granted. Similar is the case in which no caveat is filed but the Court directs issue of a notice of the application and upon hearing the opposite party makes the order of arrest. Thus, in a case heard "ex parte" in the absence of a caveat, as indeed in the case in which the opposite party is heard, the Court makes the order of arrest on the application before it. The application in either case is, to use the words of R. 941:
"The application for the arrest of the property.....supported by affidavit."
In my opinion, therefore, the application for issue of an order of arrest, whether heard ex parte or upon hearing the defendant, is I always an application under R. 941.
10. My attention was drawn to Chapter X of the Rules captioned "NOTICES OF MOTION". R. 147 expressly enables the Plaintiff to move the Court ex parte. R. 941 does not do so. Therefore, the analogy on which Mr. Tulzapurkar relies is not appropriate. But this is not the only reason for negativing the argument.
Rule 148, on which too, Counsel relies, does require "a party to whom interim relief has been granted" to give an undertaking similar to the one required under R. 941. It is significant that the rule requires an undertaking in cases where "interim relief is granted. The word "interim" when used as a noun means "intervening" and when used as an adjective, it means "temporary" or "provisional". Interim reliefs are granted to serve the temporary purpose of protecting the Plaintiff's interest so that the suit is not frustrated. By their very nature, interim reliefs last as long as the suit lasts. They are "interim" because they operate during the interval between the institution of the suit and its disposal. The words "interim reliefs" mean reliefs granted to last during such intermediate time, interval, interlude or meantime, as exists during the pendency of the suit. Such reliefs whether granted ex parte or upon hearing the defendant have a common character, which is marked by their temporary, provisional, intermediate nature. The argument of Counsel stems from the erroneous assumption that ex parte reliefs are interim and those granted after hearing the defendants are not. In my opinion, all reliefs ex parte or otherwise, granted during the pendency of the suit, are interim in their nature. Therefore, the requirement of undertaking applies to both types of reliefs.
11. Consider the consequence of acceptance of the argument advanced on behalf of the Plaintiffs. Suits may be dismissed causing, meanwhile, irreparable damage to the Defendants. A defendant against whom "ex parte" interim relief is granted may enforce the undertaking and recover compensation, but a defendant who suffers damages merely because he chooses to appear and present his case at the time of grant of interim relief is denied compensation. Such a consequence is not intended by the Rules.
12. Lastly, it was urged that the loss or damage to the defendant resulting from an interim relief granted after hearing the defendant, is caused by an act of the Court and the argument proceeds, "an act of the Court shall prejudice no man". The relevant rules which require a party securing interim relief to give the undertaking take into account the general doctrine founded on justice and good sense. The R. 941 assumes that the party who obtains interim relief is, by such relief, likely to cause loss or damage to the defendant. The party who suffers such loss or damage cannot be left without recompense. But for the undertaking which the Court can enforce, the Defendants would suffer damage from the Court's order. That is why the rule requiring the undertaking is designed to ensure that "an act of the Court shall prejudice no man". The rule requiring the undertaking is a manifestation of the Court's anxiety to ensure that its act prejudices none. That is why an undertaking is demanded. If there were no undertaking, the Court's act would certainly prejudice the Defendants.
But I see a fallacy in the reliance on the doctrine. The argument assumes, without reason, that an order granting interim relief ex parte is not an act of the Court. An ex parte interim order is as much an act of the Court as is an order made after hearing the defendants.
13. In my opinion, the Plaintiffs are bound to give an undertaking to this Court in accordance with R. 941 of the Rules.
14. I, therefore, order that the Plaintiffs shall within seven days from today file a written undertaking in accordance with R. 941 of the Rules. If the Plaintiffs fail to file such an undertaking within the stipulated time, the Defendant No. 3 is at liberty to make an application for having the ship released from the arrest.
The Plaintiffs will pay costs of this Notice, of Motion to the Defendant No. 3.
Order accordingly.