Bombay High Court
Polygreen Inernational Dmcc vs Mt Pamboor 2 (Imo-9914852) And Anr on 1 April, 2022
Author: N. J. Jamadar
Bench: N. J. Jamadar
COMASL10641-22AWJO23-22.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ADMIRALTY AND VICE ADMIRALTY JURISDICTION
IN ITS COMMERCIAL DIVISION
JUDGES ORDER NO. 23 OF 2022
IN
COMM ADMIRALTY SUIT (L) NO. 10641 OF 2022
Polygreen International DMCC ...Plaintiff
Versus
MT Pamboor 2 (IMO:9914852) ...Defendant
Mr. Aditya Krishnamurthy, a/w Pulkit Dhawan, i/b Bose &
Mitra & Co., for the Plaintiff.
CORAM: N. J. JAMADAR, J.
DATED : 1st APRIL, 2022
Order:-
1. This suit seeks urgent relief of the arrest of defendant no.1
vessel MT PAMBOOR 2 (IMO:9914852), an oil product tanker
ship, registered as a River Sea Vessel (Type-II) at the port of
Mumbai, under the Merchant Shipping Act, 1958, together with
her hull, tackle, engines, gears, plant, machinery, articles,
things, apparel, equipment, paraphernalia and all other
appurtenances, presently at the Port and Harbour of Mumbai,
within the territorial waters of the India, in view of the maritime
claim of the plaintiff in the sum of US$ 1,416,293 for the salvage
services rendered by the plaintiff.
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2. A Judges Order is taken out by the plaintiff for an urgent
order of arrest.
3. It is the case of the plaintiff that defendant no.2 Shiny
Shipping and Logistics Private Limited ("Shiny Shipping") a
company incorporated under the Companies Act, 1956, is the
registered owner of defendant no.1 MT PAMBOOR 2. Defendant
no.2 Shiny Shipping, is a 100% holding company of M/s. Tresta
Trading Ltd. ("Tresta Trading") a Mauritius based company. The
said M/s. Tresta Trading owns MT Tresta Star bearing IMO
No.9869629 ("MT Tresta Star").
4. MV Tresta Star ran aground on 3rd February, 2022 during
Tropical Cyclone Batsiri and a salvage agreement was executed
in Lloyd's Standard Form of Salvage Agreement to salvage the
vessel Tresta. The plaintiff rendered the services and bill in the
sum of US$ 1,391,261.48 million was raised. A notice was
issued to the Solicitors of the defendants on 31 st March, 2022.
The plaintiff is, thus, constrained to institute this suit for
maritime claim in the sum of US$ 1,416,293 along with interest
at the rate of 4.5% p.a. If defendant no.1 vessel sails out of the
territorial waters of India, the plaintiff would be left in the lurch.
Hence this motion for urgent order of arrest of defendant no.1.
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5. I have heard Mr. Krishnamurthy, the learned Counsel for
the plaintiff. Perused the material on record.
6. The claim of the plaintiff that the plaintiff had rendered
salvage services to Tresta Star finds prima facie support in the
Preliminary Refloating Plan (Exhibit-J) and the Salvage
Agreement (Exhibit-G) executed between the plaintiff and Tresta
Trading Ltd. The plaintiff has placed on record daily progress
reports at Exhibit-I-1 to I-14, which lend prima facie credence to
the claim of the plaintiff. Under Clause (i) of sub-section (1) of
Section 4 of the Admiralty (Jurisdiction and Settlement of
Maritime Claims) Act, 2017 ("the Admiralty Act, 2017"), salvage
services constitute a maritime claim.
7. The question which warrants consideration is the jural
relationship between defendant no.2 and Tresta to which the
salvage services were rendered. The learned Counsel for the
plaintiff submitted that the fact that Tresta Star is owned by
Tresta Trading Ltd. is substantiated by the Equasis - Ship
Folder (Exhibit-F), which indicates that Tresta Trading Ltd. is
the registered owner of the said ship. The learned Counsel
further banked upon a statement containing 'salient features of
the financial statement of subsidiaries/associate companies/
joint ventures' (Annexure-I Form AOC-I) furnished under
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Companies (Accounts) Rules, 2014, to lend support to the
submission that defendant no.2 holds 100% shares of Tresta
Trading Ltd. This statement, prima facie, show that defendant
no.2 holds 100% shares in its subsidiary, Tresta Trading Ltd.
8. Under Section 5(2) of the Admiralty Act, 2017, the court
may also order arrest of any other vessel for the purpose of
providing security against a maritime claim, in lieu of the vessel
against which a maritime claim has been made under the Act.
9. The Registry has confirmed that no caveat against the
arrest of defendant no.1 is entered in the Caveat Register.
10. In the light of the aforesaid facts, I am satisfied that a
prima facie case for arrest of defendant no.1 vessel is made out.
11. Hence, the following order:
:ORDER :
(i) I order the arrest of defendant no.1 Vessel MT PAMBOOR 2 (IMO:9914852) lying and being with Admiralty Jurisdiction of this Court along with her hull, tackle, engines, gears, plant, machinery, articles, things, apparel, equipment, paraphernalia and all other appurtenances, presently at the Port and Harbour of Mumbai.
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(ii) The undertaking of the plaintiff dated 1st April, 2022, is accepted.
(iii) The Judge's Order for arrest of defendant no.1 vessel is signed separately.
(iv) The undertaking of plaintiff's advocate that the warrant of arrest will be served upon the vessel within a period of two weeks from today by e-mail or fax or hand delivery is accepted.
(v) After service of warrant of arrest, if the arrested vessel is not released by furnishing security or bail amount within 45 days, or an application for vacating order of arrest is not filed, or the vessel is found abandoned by the person in-charge of the vessel or owner or is found unmanned, then, in such an event, on an application being made by plaintiff, the office of Sheriff of Mumbai shall present a Sheriff's report for auctioning the vessel within seven days from the date of receiving communication from plaintiff's advocate or from the date of knowledge of abandonment of vessel.
(vi) Plaintiff is at liberty to forward a copy of the communication from the Sheriff of Mumbai 5/6 COMASL10641-22AWJO23-22.DOC forwarding this order by fax / e-mail / hand delivery / RPAD to all the concerned Authorities.
(vii) All parties are directed to act on an ordinary copy of this order duly authenticated by the concerned SANTOSH SUBHASH KULKARNI Associate of this Court.
Digitally signed bySANTOSH SUBHASH KULKARNI Date: 2022.04.01 20:20:46 +0530
[N. J. JAMADAR, J.] 6/6