Bombay High Court
Bhambhani Shipping Ltd vs M.V Adsun Genesis Imo And 2 Ors on 30 December, 2020
Author: B.P. Colabawalla
Bench: B.P. Colabawalla
1.COMASL.9555.2020.doc
dik
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ADMIRALTY AND VICE ADMIRALTY JURISDICTION
IN ITS COMMERCIAL DIVISION
Digitally
signed by
Dhanappa
Dhanappa I. Koshti
I. Koshti Date:
2020.12.30
17:40:32
+0530
COMM. ADMIRALTY SUIT (L) NO. 9555 OF 2020
a/w
JUDGES ORDER (L) NO. 10006 OF 2020
Bhambhani Shipping Ltd. ... Plaintiff
Vs
M.V. Adsun Genesis (IMO No. 9503366)
& Ors. ... Defendants.
Mr. Prashant Pratap Sr. Advocate a/w Mr. Nirav Shroff & Mr.
Abhijeet Badar i/b M/s Crawford Bayley & Co. for the plaintiff.
Mr. Rahul Narichania, Sr. Advocate a/w Mr. Amitava Majumdar a/
w Ms. Tripti Sharma i/b Bose & Mitra & Co. for Defendant Nos.1
and 3.
CORAM : B.P. COLABAWALLA, J.
DATE : 30th DECEMBER, 2020 (IN CHAMBER) P.C. :
1 When this matter was originally moved before me on 28th December, 2020 it was heard for some time and thereafter adjourned to yesterday. Yesterday, on my suggestion, the parties tried to work out some via-media and hence the matter has come up today.
Page 1 of 7
1.COMASL.9555.2020.doc 2 At the outset, Mr. Pratap, the learned senior counsel appearing for the plaintiff, has tendered a draft amendment to replace paragraphs 1(c) and 1(d) of the plaint as refected in the draft amendment. Though Mr. Narichania took strong objection to the amendment sought, considering that neither the writ of summons nor the warrant of arrest has been issued, I am inclined to allow the amendment.
3 In these circumstances, the draft amendment handed in is taken on record and marked "X" for identifcation and the plaintiff is permitted to amend the plaint in terms of the said draft. The amendment shall be carried out within a period of one week from today and the amended copy of the plaint shall be served on the advocates for defendant Nos.1 and 3 within a period of two days thereafter. Re-verifcation is dispensed with. It is needless to clarify that the defendants do not admit anything that is stated in the amendment and are free to take up all appropriate contentions to refute all the averments in the plaint including the amended portion thereof.
4 The present matter has been moved pursuant to the Page 2 of 7
1.COMASL.9555.2020.doc liberty granted by this Court in its order dated 21 st December, 2020 for enlarging the order of arrest to cover the entire suit claim. By the said order (dated 21/12/2020) the defendant vessel was arrested for securing the lesser sum of USD 25,041 which was payable under the Settlement Agreement entered into between M/s Halani International Limited and defendant No.2 dated 21st March, 2014. However, it was clarifed that if the said sum of USD 25,041 is deposited as mentioned in the said order, the plaintiff can renew their application for enlarging the present order of arrest to the entire suit claim as mentioned in paragraph 6 of the order dated 21 st December, 2020. It is not in dispute that the sum of USD 25,041 (rupees equivalent) has been deposited by defendant No.3 with the offce of the Sheriff of Mumbai without prejudice to their rights and contentions. It is in these circumstances, that the present application is made for enlarging the order of arrest to cover the entire suit claim. 5 Mr. Narichania, the learned senior counsel appearing on behalf of defendant Nos.1 and 3, submitted that though there was no justifcation or merit in securing arrest of the defendant vessel, without prejudice to the rights and contentions of Page 3 of 7
1.COMASL.9555.2020.doc defendant Nos.1 and 3, defendant No.3 is willing to furnish security by depositing USD 304,336 (comprising of USD 329,377 minus USD 25,041 already deposited) together with interest @ 5 % p.a. on the sum of USD 329,337 from the due date of each outstanding invoice till today. He submitted that even the legal costs which have been claimed of USD 15,000 shall be deposited without prejudice to their rights and contentions. 6 On the other hand, Mr. Pratap the learned senior counsel appearing on behalf of the plaintiff, submitted that if defendant Nos.1 and 3 seek release of the defendant vessel, then they ought to deposit the entire amount, namely, the principal amount together with interest @ 12 % p.a. as that was the contractual rate refected in the Charter Party dated 28 th June, 2012.
7 I have heard both parties on this aspect. Considering that this is a claim in USD, currently, and only for the purpose of furnishing security, I am inclined to accept Mr. Narichania's submission to deposit the sum of USD 304,366/= together with interest @ 5 % p.a. on the sum of USD 329,377/=, which interest is Page 4 of 7
1.COMASL.9555.2020.doc calculated from the date of the outstanding invoices till today. I must hasten to add that this should not in any way be construed to mean that the plaintiff is dis-entitled to claim the contractual rate of interest.
8 In these circumstances, the order of arrest passed on 21st December, 2020 stands enlarged to cover the claim of USD 451,088/= which includes the amount of USD 304,336 and interest @ 5 % p.a. on the sum of USD 329,377/= from the due date of the outstanding invoices till today and the legal costs of USD 15,000/-.
9 Accordingly, the Judges Order is also separately signed.
10 On defendant Nos.1 and/or 3 depositing the rupee equivalent of USD 451,088 (@ Rs.74.00 per USD) with the offce of the Sheriff of Mumbai, with intimation to the advocates for the plaintiff, the order of arrest shall stand vacated and the defendant vessel shall stand released from arrest. In such an event the instrument of release shall be dispensed with. Page 5 of 7
1.COMASL.9555.2020.doc 11 It is needless to clarify that this order is passed without prejudice to the rights and contentions of both the parties. The defendants shall be at liberty to fle an appropriate application to seek refund of the security furnished, on the ground of wrongful arrest or that the order of arrest was improperly obtained.
12 Mr. Narichania, the learned senior counsel appearing on behalf of defendant Nos.1 and 3 states that an application seeking refund of the security shall be fled on or before 5 th January, 2021. If such an application is fled and served on the advocates for the plaintiffs, the plaintiff shall fle their affdavit-
in-reply thereto by 11th January, 2021. Re-joinder, if any, can be fled by defendant Nos.1 and 3 on or before 14 th January, 2021 and the proposed application can be peremptorily listed on 19 th January, 2021. It is also needless to clarify that when the aforesaid proposed application is argued, it will be open for the plaintiff to contend that the security amount should be enhanced so as to include interest @ 12 % p.a. instead of 5 % p.a. I must state that all contentions of the parties are expressly kept open Page 6 of 7
1.COMASL.9555.2020.doc and I have not decided the merits of any of the contentions raised by the parties.
13 The Port, Customs and Immigration Authorities shall allow the defendant vessel to carry out all operations and work and move within the precincts of the port even during the order of arrest and even before it is released. They shall also be allowed to carry out underwater inspection, if required. 14 The above Judges Order is accordingly disposed of. 15 This order shall be digitally signed by the Private Secretory /Personal Assistant of this Court. All concerned shall act on production by fax or e-mail of a digitally signed copy of this order.
(B.P. COLABAWALLA, J. ) Page 7 of 7