Gujarat High Court
Hermes Marines Limited vs Capeshore Maritime Partners Fzc & on 22 April, 2016
Equivalent citations: AIR 2016 (NOC) 732 (GUJ.)
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
O/OJCA/144/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (OJ) NO. 144 of 2016
in
ADMIRALTY SUIT NO. 10 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
==========================================================
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 ?
========================================================== HERMES MARINES LIMITED ....Applicant(s) Versus CAPESHORE MARITIME PARTNERS FZC & 1 ....Respondent(s) ========================================================== Appearance:
MR MIHIR THAKORE, SENIOR ADVOCATE WITH MR AS VAKIL, ADVOCATE for the Applicant MR BHARAT T RAO, ADVOCATE for Respondent No. 1 ========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 22/04/2016 C.A.V. JUDGMENT
1. The present application has been preferred under Page 1 of 55 HC-NIC Page 1 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 ("the Code"), for the rejection of the plaint.
2. The applicant, Hermes Marines Limited, is a corporate entity incorporated under the laws of Marshall Island. It is the owner of the defendant Vessel M.V.Atlantis (IMO No.:8128078), which is a foreign ship flying the flag of Togo, Port of Registry, and is a bulk carrier. It is presently at the port and harbour of Alang West Coast at Alang, Bhavnagar, within the territorial waters of India and, thus, within the Admiralty jurisdiction of this Court.
3. Opponent No.1 /plaintiff - Capeshore Maritime Partners FZC (referred to as the plaintiff, for convenience), is a Company incorporated under the laws of the United Arab Emirates and is engaged in carrying on the business of the sale and purchase of vessels, including old vessels for the purpose of demolition, navigation and chartering.
4. The plaintiff instituted the abovementioned Page 2 of 55 HC-NIC Page 2 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT Admiralty Suit, invoking the Admiralty jurisdiction of this Court praying, inter alia, for a decree for the possession of the defendant Vessel along with her hull, tackle, machinery, engines and paraphernalia and for the transfer of the ownership of the defendant Vessel in favour of the plaintiff be issued. By way of exparte, adinterim relief, the plaintiff sought the arrest of the defendant ship.
5. It is stated in the plaint that on 13.12.2015, a Memorandum of Agreement (MoA) was executed between the plaintiff and the applicant herein, for the purpose of the purchase of the defendant Vessel, for demolition by the plaintiff. As per the terms and conditions of the MoA, the plaintiff was to deposit 20% of the amount of the purchase price as notified by the applicant, namely USD 4,96,398/ into its account. On 15.12.2015, the first Addendum was executed between the parties, whereby certain clauses were inserted in the MoA. The second Addendum was executed on 22.12.2015, whereby information pertaining to banking was provided. The third Page 3 of 55 HC-NIC Page 3 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT Addendum was executed on 04.01.2016 and the fourth one on 11.02.2016. By the last Addendum, Clause 4 of the original MoA was substituted. As per the MoA, the outer time limit for the delivery of the Vessel was 15.01.2016, at the Seller's option with the cancelling date being 18.01.2016, at the buyer's option. In all cases, time for voyage was to be allowed.
6. It is the case of the plaintiff, as set out in the plaint, that the applicant could not fulfil its obligation as per the MoA, for tendering the valid Notice of Readiness (NoR) with proof of all inward clearances. The defendant Vessel was to reach Alang West Coast on 08.01.2016, as per the Seller's option, with the cancelling date as 11.01.2016, at the buyer's option. The plaintiff gave notice to the applicant for the final compliance as per the terms of the MoA, read with the Addendum. The total claim of the plaintiff sought to be recovered from the defendant, as stated in the plaint is USD 8,66,196.00 = Rs.5,89,01,328.00. There is no dispute that the claim of the plaintiff arises Page 4 of 55 HC-NIC Page 4 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT out of a contract of sale of the defendant Vessel. According to the plaintiff, it is a maritime claim.
7. This Court, by an order dated 24.02.2016, ordered the arrest of the defendant Vessel M.V.Atlantis. Under the circumstances, the applicant herein, who is the owner of the defendant Vessel, has filed the present application for the rejection of the plaint.
8. Mr.Mihir J.Thakore, learned Senior Counsel has appeared for the applicant with Mr.A.S.Vakil, learned advocate. Learned Senior Counsel has submitted that as per the averments made in the plaint, the plaintiff claims that it has a "maritime claim" under Article 1(v) of the International Convention on the Arrest of Ships (Geneva) 1999 ("the Geneva Convention of 1999"
for short) and Article 1(o) of the International Convention Relating to the Arrest of Sea Going Ships (Brussels), 1952 ("the Brussels Convention of 1952" for short). That, as per the averments made in Paragraph49 of the plaint, it is stated Page 5 of 55 HC-NIC Page 5 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT that this Court has jurisdiction under the Admiralty Courts Act(s) 1840 and 1861 and the Geneva Convention of 1999.
9. It is further submitted that the claim of the plaintiff is based upon a contract for the sale of the Vessel, that is purely private in nature, executed between private parties. The Geneva Convention of 1999 is only applicable in India, if the contract involves any public law character, as held by the Division Bench of this Court in judgment dated 17.02.2011 rendered in OJ Appeal No.6 of 2011 in Admiralty Suit No.10 of 2010 and connected matters, Croft Sales and Distribution Limited v. M.V.Basil (IMO No.7532650) & Ors. That, the Division Bench has relied upon the decision of the Supreme Court in Liverpool & London Steamship Protection and Indemnity Association v. M.V. Sea Success - 2004(9) SCC 512, more specifically, Paragraphs 59 and 60 of the said judgment, while holding that the applicability of the Geneva Convention of 1999 would be subject to (1) domestic law Page 6 of 55 HC-NIC Page 6 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT which may be enacted by Parliament and (2) it should be applied only for the enforcement of a contract involving public law character. If both the conditions are not satisfied, the Geneva Convention of 1999 cannot be applied and the Admiralty jurisdiction of this Court cannot be invoked, based upon the said Convention. Learned Senior Counsel would submit that since the claim of the plaintiff arises from a contract of a private nature and the said contract does not involve public law character, the plaint is liable to be rejected under the provisions of Order 7 Rule 11(d) of the Code, as being barred by law. The suit, itself, is not maintainable as the plaintiff is not entitled to invoke the Admiralty jurisdiction of this Court on the strength of the Geneva Convention of 1999.
10. It is further contended that not only is the plaint liable to be rejected under Order 7 Rule 11(d), it is also required to be rejected under Clause (a) of Rule 11 of Order 7, as it does not disclose any cause of action. If the Geneva Convention of 1999 cannot be invoked, the claim Page 7 of 55 HC-NIC Page 7 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT of the plaintiff cannot be said to be a maritime claim that can be entertained under the Admiralty jurisdiction of this Court. The plaint, therefore, lacks a cause of action and is liable to be rejected on this ground, as well.
11. Learned Senior Counsel has relied upon two judgments of this Court taking the same view, namely, the oral order dated 02.11.2015 passed in Admiralty Suit No.34 of 2015 - Vital Ventures Ltd. v. M.V.Infinity and Croft Sales and Distribution Limited v. M.V.Basil and Ors. 2011(2) GLR 1027, which has been upheld by the Division Bench vide judgment dated 17.02.2011 rendered in OJ Appeal No.6 of 2011 in Admiralty Suit No.10 of 2010 and connected matters, Croft Sales and Distribution Limited v. M.V.Basil (IMO No.7532650) & Ors., referred to hereinabove. It is submitted that the judgment of the Division Bench in Croft Sales has attained finality and is binding on this Court.
Page 8 of 55 HC-NIC Page 8 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT
12. Learned Senior Counsel further contends that the word `law' as it appears in Order 7 Rule 11(d) would also mean judgmentlaw, in addition to statutelaw, therefore, the plaint is barred by law. It is submitted that Paragraphs 59 and 60 of the judgment in the case of Liverpool & London (supra), are binding upon all courts, being the ratio decidendi. It cannot be said to be an obiter dictum. It is elaborated that the issue involved in Liverpool & London case was whether an insurance premium is a `necessary'. As per Article 1(q) of the Geneva Convention of 1999, insurance premium would constitute a `necessary' and, therefore, a claim based on insurance premium would be a maritime claim. The question arose whether the Geneva Convention of 1999 would be applicable. In this context, the Supreme Court held, in Paragraphs 59 and 60 of the judgment in Liverpool & London (supra) that the said convention would be applicable only for the enforcement of a contract involving public law character. It is contended by learned Senior Counsel Mr.Thakore, that the said pronouncement Page 9 of 55 HC-NIC Page 9 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT is, therefore, not an obiter dictum but the ratio decidendi of the judgment and has been followed by the Division Bench of this Court in Croft Sales (supra). Both the judgments are, therefore, binding on this Court.
13. Learned Senior Counsel has further submitted that even if the pronouncement of the Supreme Court is considered to be an obiter dictum, it would still be binding in nature, as the obiter dictum of the Supreme Court is binding upon all Courts.
14. In support of the above contention, reliance is placed upon several judgments that shall be discussed later on.
15. Opposing the application, Mr.Bharat T.Rao, learned counsel for the plaintiff has raised a preliminary objection, to the effect that there is no Board Resolution authorising the Director of the applicant Company to engage an advocate. Being a foreign Company, it is necessary for the applicant to place on record the Resolution of the Board of Directors, authorising the Page 10 of 55 HC-NIC Page 10 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT signatory of the Vakalatnama to engage an advocate for the filing of the application.
16. Other contentions, on merits, have also been advanced by Mr.Rao, learned counsel. However, it would be appropriate to first deal with the preliminary objection.
17. On page6 of the present application, is the Power of Attorney, executed by the applicant in favour of Mr.A.M.Krishnan, to initiate and/ or defend legal proceedings on behalf of the applicant in all High Courts in India, including the High Court of Gujarat. The present application is filed on the affidavit of Mr.A.M.Krishnan, who has been empowered by the applicant to do so. He is also authorised to engage an advocate to plead the case(s) before the Court(s).
18. In view of the above material on record, the preliminary objection raised by Mr.Rao, learned advocate, is not sustainable.
19. On merits, learned counsel for the plaintiff has Page 11 of 55 HC-NIC Page 11 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT advanced detailed submissions. The first submission is that an application under Order 7 Rule 11(d) has to be decided on the basis of the averments made in the plaint, alone. The defence of the defendant cannot be taken into consideration. In this regard, reliance has been placed upon several judgments that shall be dealt with at the appropriate stage.
20. It is further submitted that it is only the ratio decidendi of a judgment that is binding and not the other observations and conclusions, as has been held by the Constitution Bench of the Supreme Court in the case of Islamic Academy of Education And Another v. State of Karnataka And Others - (2003)6 SCC 697, and other judgments. According to Mr.Rao, the pronouncement of the Supreme Court in Paragraphs 59 and 60 in Liverpool & London (supra), is not the ratio decidendi of the judgment, therefore not binding on the Courts.
21. It is further contended that Order 7 Rule 11(d) states that a plaint is liable to be rejected if Page 12 of 55 HC-NIC Page 12 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT the suit appears from the statement in the plaint to be barred by "any law". According to the learned counsel for the plaintiff, `law' means only statutelaw and does not include in its ambit the law laid down by a judgment. As per the submissions of the learned counsel, a plaint cannot be rejected on the basis of a judgment and, in the present case, it cannot be rejected on the basis of the judgment of the Division Bench in Croft Sales (supra), relying upon the judgment of the Supreme Court in Liverpool & London (supra), as the said judgment cannot be considered to be `law'.
22. It is further contended that India has not enacted any statute, or framed any Rules, governing maritime disputes. From the year 1993, by virtue of the judgment in the case of M.V.Elizabeth & Ors. v. Harwan investment and Trading Pvt. Ltd. reported in 1993 Supp(2) SCC 433, Admiralty jurisdiction is being exercised and recognized by the Supreme Court and the Original Side of the High Courts of coastal States. As, till date, there is no codified Page 13 of 55 HC-NIC Page 13 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT maritime law in India, Conventions are applied. It is contended that the case of the plaintiff is squarely covered by the Geneva Convention of 1999 and the claim of the plaintiff is a maritime claim. The plaintiff is, therefore, entitled to invoke the Admiralty jurisdiction of this Court and the plaint is not liable to be rejected.
23. Reference has been made to a judgment of the Division Bench of the High Court of Judicature at Bombay in the case of Great Pacific Navigation (Holdings) Corporation Limited v. M.V.Tongli Yantai Appeal No.559 of 2011, wherein the appeal was allowed and the order of the learned Single Judge rejecting the plaint was set aside. While doing so, the Division Bench of the Bombay High Court discussed the judgment of the Supreme Court in Liverpool & London (supra) and the judgment of the Division Bench of this Court in Croft Sales (supra).
24. On the above grounds, it is prayed on behalf of the plaintiff, that the application be rejected. Page 14 of 55 HC-NIC Page 14 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT
25. This Court has heard learned counsel for the respective parties at length and in great detail and has thoughtfully considered the rival submissions.
26. The prayer made in the present application is for the rejection of the plaint under Order 7 Rule 11(d) of the Code. While making submissions, Mr.Mihir Thakore, learned Senior Advocate for the applicant, has urged that the plaint is liable to be rejected not only under Order 7 Rule 11(d), as being barred by law, but also under Order 7 Rule 11(a), as it does not disclose any cause of action. The claim of the plaintiff under the Geneva Convention of 1999 is not a maritime claim, being based on a private contract that does not involve public law character, therefore, as it is not a maritime claim, the suit is devoid of any cause of action.
27. At this juncture, it would be convenient to reproduce the relevant provisions of the Code. Order 7 Rule 11 reads as below:
Page 15 of 55 HC-NIC Page 15 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT "11. Rejection of plaint:
The plaint shall be rejected in the following cases
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamppaper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamppaper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp paper as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
28. One of the pivotal issues that arises for the Page 16 of 55 HC-NIC Page 16 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT adjudication of this Court is whether, on the basis of the judgment of the Division Bench of this Court in Croft Sales (supra), wherein a view has been taken that the Geneva Convention of 1999 would be applicable in India only if the contract involves public law character, the plaint is liable to be rejected, or not. It has been strenuously argued by Mr.Bharat T.Rao, learned counsel for the plaintiff that the Division Bench of this Court Croft Sales (supra) has relied upon Paragraphs 59 and 60 of the judgment of the Supreme Court in Liverpool & London (supra), which paragraphs do not form the ratio decidendi of the said judgment, but are obiter dicta and, therefore, not binding. On the point whether an obiter dictum of a judgment of the Supreme Court has binding force or only the ratio decidendi, several judgments have been cited by both sides.
29. On this issue, Mr.Mihir J.Thakore, learned Senior Counsel has relied upon a judgment of the High Court of Judicature at Bombay, in the case of Mohandas Issardas and others v.Page 17 of 55
HC-NIC Page 17 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT A.N.Sattanathan and others - AIR 1955 Bombay 113, wherein it is stated thus:
"5. Before we turn to the judgment of the Supreme Court, it is necessary to have our minds clear as to what is an 'obiter dictum' which has a binding effect upon a Court. It is rather significant to bear in mind that in England an 'obiter dictum' has no binding effect either upon a coordinate Court or upon a subordinate Court. An 'obiter dictum', especially of an eminent judicial tribunal like the Privy Council or the House of Lords, would undoubtedly be entitled to the highest respect. But a Judge in England would not feel that he would be bound by an opinion expressed by the higher tribunal. In India, we have perhaps advisedly made a departure from the principle operating in England with regard to 'obiter dicta'. At a time when the Judicial Committee of the Privy Council was the highest judicial tribunal in the Empire, as it then was, the Courts in India felt that it would be in the interests of judicial uniformity and judicial discipline if not only they accepted the decisions of the Privy Council, which indeed were binding upon them, but also accepted the 'obiter dicta' of the Privy Council as binding upon them. Page 18 of 55 HC-NIC Page 18 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT The feeling was that, if the Privy Council expressed an opinion on a point which, although not necessary for decision, clearly indicated the opinion formed by the Privy Council on a question of law, then the Courts in India should accept that as an authoritative pronouncement on the particular aspect of the law and treat that pronouncement as binding, the Supreme Court has now taken the place of the Privy Council and we would like to say unhesitatingly that we must show the same respect for the 'obiter dicta' of the Supreme Court that we did for those of the Privy Council. The Supreme Court, is the highest Judicial tribunal in India today and it is as much necessary in the interests of judicial uniformity and judicial discipline that all the High Courts must accept as binding the 'obiter dicta' of the Supreme Court in the same spirit as the High Courts accepted the 'obiter dicta' of the Privy Council.
... ... ...
10. Therefore, it would be incorrect to say that every opinion of the Supreme Court would be binding upon the High Courts in India. The only opinion which would be binding would be an opinion expressed on a question that, arose for the determination Page 19 of 55 HC-NIC Page 19 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT of the Supreme Court, and even though ultimately it might be found that the particular question was not necessary for the decision of the case, even so, if an opinion was expressed by the Supreme Court on that question, then the opinion would be binding upon us. It is from this aspect that we must turn to the decision of the Supreme Court which, it is contended, has overruled the decision to which reference has been made."
(emphasis supplied)
30. Reliance has also been placed on a judgment of the Supreme Court in Oriental Insurance Co. Ltd. v. Meena Variyal And Others - (2007)5 SCC 428, wherein the Supreme Court has held that:
"26. .... An obiter dictum of this Court may be binding only on the High Courts in the absence of a direct pronouncement on that question elsewhere by this Court. But as far as this Court is concerned, though not binding, it does have clear persuasive authority...."
(emphasis supplied)
31. In Sanjay Dutt v. State through CBI Bombay (I)
- (1994)5 SCC 402, the Supreme Court has held Page 20 of 55 HC-NIC Page 20 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT as below:
"8. Since even the obiter dicta of this Court is said to be binding upon other courts in the country and also because the interpretation placed upon Section 5 by the learned Judge amounts to reading words into Section 5 or the other is likely to affect a large number of cases in the country, we think it appropriate that the matter is pronounced upon by the Constitution Bench so as to authoritatively settle the issue."
(emphasis supplied)
32. Further, in Municipal Committee, Amritsar v. Hazara Singh - (1975)1 SCC 794, the Supreme Court has held as under:
"4. ....... Indeed, the Kerala case cited before us by counsel viz., State of Kerala v. Vasudevan Nair itself shows that such distortion of the passage in the judgment did not and could not pass muster. When pressed with such misuse of this ruling, the High Court repelled it. The law of food adulterations as also the right approach to decisions of this Court, have been set out correctly there:
"Judicial propriety, dignity and Page 21 of 55 HC-NIC Page 21 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT decorum demand that being the highest judicial tribunal in the country even obiter dictum of the Supreme Court should be accepted as binding.
Declaration of law by that Court even if it be only by the way has to be respected. But all that does not mean that every statement contained in a judgment of that Court would be attracted by Art.141. Statements on matters other than law have no binding force. Several decisions of the Supreme Court are on facts and that Court itself has pointed out in Gurucharan Singh And Anr. v. State of Punjab (1972 FAC 549) and Prakash Chandra Pathak v. State of Uttar Pradesh that as on facts no two cases could be similar, its own decisions which were essentially on questions of fact could not be relied upon as precedents for decision of other cases."
* * * * * * "
(emphasis supplied)
33. Learned Senior Counsel for the applicant has further relied upon the pronouncement by the Apex Court in Kanya Junior High School, Bal Vidya Mandir, Etah, UP v. UP Basic Shiksha Page 22 of 55 HC-NIC Page 22 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT Parishad, Allahabad, UP And Others - (2006)11 SCC 92, which is quoted hereinbelow:
"15. The approach adopted by the learned Single Judge in this case is against the settled principle of law. Law is consistent and clear that the Single Judge of the High Court is bound by the decision of the Division Bench."
(emphasis supplied)
34. On the other hand, Mr.Bharat T.Rao, learned counsel for the plaintiff has relied upon the Constitution Bench judgment of the Supreme Court in Islamic Academy of Education And Another v. State of Karnataka And Others - (2003)6 SCC 697, wherein it is held as below:
"221. It is unfortunate that a Constitution Bench had to be constituted for interpreting a elevenJudge Bench judgment. Probably in judicial history of India, this has been done for the first time. It is equally unfortunate that all of us cannot agree on all the points, despite the fact that the matter involves construction of a judgment. In the name of interpretation we have to some extent, however little it may Page 23 of 55 HC-NIC Page 23 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT be rewritten the judgment. We have laid down new laws and issued directions purported to be in terms of Article 142 of the Constitution. We have interpreted T.M.A. Pai, but we have also made endeavours to give effect to it. In some areas it was possible; in some other, it was not.
222. We have refrained ourselves from expressing any opinion at this stage as to whether grant of settlement of Government land at a throwaway price or allowing the private institutions to avail the facilities of Government hospitals would amount to grantofaid or not. We have also not expressed any opinion on crosssubsidy.
223. The supervisor courts in India exist for interpretation of Constitution or interpretation of statutes. They cannot evolve a foolproof system on the basis of affidavits filed by the parties or upon hearing their counsel. Certain details of vexing problems on the basis of the interpretation given by this Court must be undertaken by the statutory bodies which have the requisite expertise. It is expected that statutory bodies would be able to perform their duties for which they have been established. The doors of the Court should not be knocked every time, if a Page 24 of 55 HC-NIC Page 24 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT problem arises in implementation of the judgment, however slight it may be. The court has its own limitations. The problems which can be sorted at the ground level by holding consultations should not be allowed to be brought to the Court. It is, in that view of the matter, we have thought it fit to direct setting up of committees for the aforementioned purposes."
35. Reliance has also been placed upon the judgment of the Supreme Court on behalf of the plaintiff, in the case of Balwant Rai Saluja And Another v. Air India Limited And Others - (2014)9 SCC 407, wherein it is held that:
The binding nature of a decision would extend to only observations on points raised and decided by the Court and not on aspects which it has neither decided nor had occasion to express its opinion upon. The observation made in a prior decision on a legal question which arose in a manner not requiring any decision and which was to an extent unnecessary, ought to be considered merely as an obiter dictum. Further, it is only a ratio of the judgment or the principle upon which the question before the Court is decided which must be considered as binding to be applied as an appropriate Page 25 of 55 HC-NIC Page 25 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT precedent. (Paras 21, 22, 26 and 27) (emphasis supplied)
36. Mr.Rao, learned advocate, has also relied upon Arasmeta Captive Power Company Private Limited And Another v. Lafarge India Private Limited - (2013)15 SCC 414, wherein the Supreme Court has held:
"32. In Ambica Quarry Works v. State of Gujarat and others, it has been stated that the ratio of any decision must be understood in the background of the facts of that case. Relying on Quinn v. Leathem it has been held that the case is only an authority for what it actually decides, and not what logically follows from it.
33. Lord Halsbury in the case of Quinn has ruled thus (AC p.506): "... there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of Page 26 of 55 HC-NIC Page 26 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."
34. In Krishena Kumar v. Union of India, the Constitution Bench, while dealing with the concept of ratio decidendi, has referred to Caledonian Railway Co. v. Walker's Trustees and Quinn (supra) and the observations made by Sir Frederick Pollock and thereafter proceeded to state as follows (Krishena Kumar's Case, SCC pp.22627, para 20): "20. ... The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained Page 27 of 55 HC-NIC Page 27 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre existing rule of law, either statutory or judgemade, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th Edn., Vol. 26, para 573) "The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi."
(emphasis supplied)
37. The judgment in the case of K.P.Manu v. Chairman, Scrutiny Committee for Verification Page 28 of 55 HC-NIC Page 28 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT of Community Certificate - (2015)4 SCC 1, has also been relied upon by Mr.Rao, to buttress his submission that obiter dicta of even a larger Bench is not binding.
38. Reliance has also been placed upon Laxmi Devi v. State of Bihar & Ors. (2015)10 SCC 241, wherein it is held:
"20. A Constitution Bench has also reflected on the true nature of ratio decidendi in Krishena Kumar vs. Union of India, as is discernible from the following passages (SCC pp.22627, paras 1920):
19. The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it.
It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain "propositions wider than the case itself required". This was what Lord Selborne said in Caledonian Railway Co. v. Walker's Trustees and Lord Halsbury in Quinn v. Leathem. Sir Frederick Pollock has also said:
"Judicial authority belongs not to Page 29 of 55 HC-NIC Page 29 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision."
20. In other words, the enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre existing rule of law, either statutory or judgemade, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it."
(emphasis supplied)
39. There is no doubt regarding the proposition that the ratio decidendi of a judgment has to be Page 30 of 55 HC-NIC Page 30 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT ascertained in the background of the facts of the case and that a decision is an authority for what is actually decided. It is also settled law that the binding nature of a decision would extend only to the observations made on the points raised and decided by the Court. It is undisputed that what is of the essence of a decision is its ratio decidendi and not every observation found therein. As has been held by the Supreme Court in some of the abovequoted judgments, even an obiter dictum of the Supreme Court is binding on the High Courts in the absence of a direct pronouncement on that question elsewhere by the Supreme Court. [Oriental Insurance Co. Ltd. v. Meena Variyal And Others and Sanjay Dutt v. State through CBI Bombay (I)] Besides, judicial propriety and decorum demand that even the obiter dictum of the Supreme Court, being the highest judicial forum in the country, should be accepted as binding. It is also an undisputed position that a judgment of a Division Bench of the High Court would be binding on a Single Judge. Page 31 of 55 HC-NIC Page 31 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT
40. In Croft Sales (supra), the Division Bench of this Court has, relying on the judgment of the Supreme Court in Liverpool & London (supra), held as below:
"15 In view of the aforesaid, even if the Convention of 1999 is to apply, but for the fact that the contract is not involving any public law character, the said condition as read by the Apex Court in the above referred decision of Liverpool and London S.P. & I Association Limited v. M.V. Sea Success I and Another (supra) is not satisfied. Further, the limitation as provided by the CPC for the order of arrest, which is akin to the power to be exercised by the Civil Court for arrest of the ship is not satisfied. As per the above referred decision of the Apex Court, if both the conditions are not satisfied 1999 Convention cannot be applied, nor the admiralty jurisdiction can be invoked based on the Convention of 1999."
41. In Liverpool & London (supra), the Supreme Court has held as below:
"59. M.V. Elisabeth (supra) is an authority for the proposition that the changing global scenario should be kept in mind having Page 32 of 55 HC-NIC Page 32 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT regard to the fact that there does not exist any primary act touching the subject and in absence of any domestic legislation to the contrary; if the 1952 Arrest Convention had been applied, although India was not a signatory thereto, there is obviously no reason as to why the 1999 Arrest Convention should not be applied.
60. Application of the 1999 convention in the process of interpretive changes, however, would be subject to : (1) domestic law which may be enacted by the Parliament; and (2) it should be applied only for enforcement of a contract involving public law character."
(emphasis supplied)
42. In Liverpool & London (supra) one of the issues that was directly involved was whether the Geneva Convention of 1999 would be applicable in the context of the question, whether insurance premium is a "necessary", falling within the ambit of a maritime claim. In the abovequoted judgment, the Supreme Court has held that the Geneva Convention of 1999 would be applicable only for the enforcement of a contract involving public law character. This is, in Page 33 of 55 HC-NIC Page 33 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT the view of this Court, the ratio decidendi of the Liverpool & London judgment, looking to the facts of the case and the issues that arose for decision. The pronouncement of the Supreme Court in Paragraphs 59 and 60 of Liverpool & London (supra) lay down the law regarding the applicability of the Geneva Convention of 1999 in India, specifying that it should be applied only for the enforcement of a contract involving public law character.
43. The Division Bench of this Court in Croft Sales (supra), has followed the principle of law enunciated by the Supreme Court in Liverpool & London (supra) and held that the plaint of the Admiralty Suit which was being decided by the Division Bench did not disclose any cause of action as the contract did not involve public law character. Under the circumstances, it was held that the suit was not maintainable under Order 7 Rule 11(a) and (d).
44. The above judgment of the Division Bench of this Court, which holds the field as of today, is Page 34 of 55 HC-NIC Page 34 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT certainly binding upon this Court.
45. The judgment of a Division Bench of Bombay High Court in the case of Great Pacific Navigation (Holdings) Corporation Limited v. M.V.Tongli Yantai, cited on behalf of the plaintiff wherein the judgment of the Division Bench of this Court in Croft Sales was discussed and a different view taken, has been overruled by the Supreme Court by an order dated 12.12.2002, passed in Civil Appeal Nos.89888989 of 2012.
46. In the present case, a perusal of the plaint reveals that the cause of action for filing the suit arose from the MoA executed between the plaintiff and the applicant herein which, according to the plaintiff, has not been abided by the applicant. It is clear from the averments made in the plaint that the plaintiff has categorically asserted, in Paragraph 49 of the plaint, that it has a maritime claim under Article 1(v) of the Geneva Convention of 1999 and Article 1(o) of the Brussels Convention of 1952 and is, therefore, entitled to invoke the Page 35 of 55 HC-NIC Page 35 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT Admiralty jurisdiction of this Court.
47. Admiralty jurisdiction is only available in respect of a maritime claim. Article 1(v) of the Geneva Convention of 1999 says that any dispute arising out of a contract for the sale of a ship is a maritime claim. However, the Supreme Court has held in Liverpool & London (supra), followed by the Division Bench of this Court in Croft Sales (supra), that the Geneva Convention of 1999 is applicable only to a contract involving public law character. In the present case, the dispute between the parties is purely of a private nature. The MoA executed between the parties does not involve public law character, nor does it touch upon any issue of wider public interest. The MoA is for the sale of the defendant Vessel. There is no element of public law character involved in it and it is clearly a private contract. Further, it is not even the case of the plaintiff that the contract involves public character. Taking the above aspect into consideration, this Court is of the view that the Geneva Convention of 1999 cannot Page 36 of 55 HC-NIC Page 36 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT be made applicable to the contract between the plaintiff and the applicant, flowing from the MoA executed between the parties, which is purely of a private nature.
48. Viewed from this perspective, if the Geneva Convention is not applicable to the MoA on the abovediscussed premise, it then follows that the claim of the plaintiff is not a maritime claim and, therefore, the plaintiff is not entitled to invoke the Admiralty jurisdiction of this Court. If the Admiralty jurisdiction of this Court is barred to the plaintiff, as a logical consequence, the plaint lacks a cause of action and is, therefore, also liable to be rejected under Order 7 Rule 11(a), as well.
49. It has been vehemently argued by Mr.Bharat T.Rao, learned counsel for the plaintiff that the submission on behalf of the applicant, that the plaint is liable to be rejected under Order 7 Rule 11(d) may not be accepted, as clause (d) of Rule 11 refers to the plaint being barred by any `law'. According to him, this means only the Page 37 of 55 HC-NIC Page 37 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT law laid down by a statute and not by the Court in a judgment, as a result of judicial interpretation.
50. In this regard, reference may be made to Black's law Dictionary, wherein the meaning of `law' is given as below:
`law': "...... The aggregate of legislation, judicial precedents, and accepted legal principles; the body of authoritative grounds of judicial and administrative action; esp., the body of rules, standards, and principles that the courts of a particular jurisdiction apply in deciding controversies brought before them <the law of the land> ...."
51. In the view of this Court, `law' cannot be confined only to mean the enacted law contained in a statute, framed by the legislature. The scope and amplitude of the word `law' is much wider than that and takes within its sweep the binding precedents of the Supreme Court, being the highest Court in the country. When one speaks to law, one refers to all that is legally binding upon the courts and citizens. Judgments Page 38 of 55 HC-NIC Page 38 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT of the courts have interpreted various provisions of the statutes and the result of the interpretation is the law laid down by judicial precedent. The word `1aw' connotes judgemade law as much as statutelaw. The final judicial interpretation of any provision of a statute by a Court, especially the Apex Court or the final determination of any issue arising before it is very much `law'. The law expounded by the Supreme Court is binding on all courts of the country under Article 141 of the Constitution of India. A pronouncement or determination on any legal issue decided by the Supreme Court becomes the law of the land.
52. A Division Bench of the High Court of Allahabad has, in the case of Virender Kumar Dixit v. State of U.P. 2014(9) ADJ 1506, succinctly and aptly stated thus:
"15. Law includes not only legislative enactments but also judicial precedents. An authoritative judgment of the courts including higher judiciary is also law."
53. In light of the above discussion, in the Page 39 of 55 HC-NIC Page 39 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT considered view of this Court, it cannot be said that the term "barred by any law" occurring in clause (d) of Rule 11 of Order 7 of the Code, ought to be read to mean only the law codified in a legislative enactment and not the law laid down by the courts in judicial precedents. The judicial precedent of the Supreme Court in Liverpool & London (supra) has been followed by the decision of the Division Bench in Croft Sales (supra). It is, therefore the law, as of today, which is that the Geneva Convention of 1999 cannot be made applicable to a contract that does not involve public law character. Such a contract would not give rise to a maritime claim. As discussed earlier, the word `law' as occurring in Order 7 Rule 11(d) would also mean judicial precedent. If the judicial precedent bars any action, that would be the law.
54. Seen from this angle, it is clear that the claim of the plaintiff is barred by the decision of the Supreme Court in Liverpool & London (supra) and that of the Division Bench in Croft Sales (supra). As a consequence thereof, the Page 40 of 55 HC-NIC Page 40 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT plaintiff does not have a maritime claim, so as to be entitled to invoke the Admiralty jurisdiction of this Court, as its claim is barred by law and the Geneva Convention of 1999, on which the entire claim rests, is not applicable. The plaint of the suit is, therefore, liable to be rejected under Order 7 Rule 11(d).
55. Several judgments have been cited by both sides regarding the provisions of Order 7 Rule 11(a) and (d).
56. Mr.Bharat T.Rao, learned advocate, has submitted that while deciding an application for the rejection of a plaint under Order 7 Rule 11, only the plaint is to be looked into, and not the defence. In aid of this proposition, reliance has been placed upon a number of judgments:
57. In P.V.Guru Raj Reddy represented by GPA Laxmi Narayan Reddy And Another v. P.Neeradha Reddy And Others - (2015)8 SCC 331, the Supreme Court has held that:
Page 41 of 55
HC-NIC Page 41 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT "5. Rejection of the plaint under Order 7 Rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7 Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7 Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.
6. In the present case, reading the plaint as a whole and proceeding on the basis that the averments made therein are correct, which is what the Court is required to do, it cannot be said that the said pleadings ex facie discloses that the suit is barred by limitation or is barred under any other provision of law. The claim of the Page 42 of 55 HC-NIC Page 42 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT plaintiffs with regard to the knowledge of the essential facts giving rise to the cause of action as pleaded will have to be accepted as correct. At the stage of consideration of the application under Order 7 Rule 11 the stand of the defendants in the written statement would be altogether irrelevant."
In the case in hand, no written statement has been filed, therefore, the only averments that have been taken into consideration by this Court are those contained in the plaint.
58. In Kamala And Others v. K.T.Eshwara SA And Others - (2008)12 SCC 661, the Supreme Court has held as below:
"21. Order 7, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various subclauses thereof, a clear finding to that effect must be arrived at.Page 43 of 55
HC-NIC Page 43 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT What would be relevant for invoking clause
(d) of Order 7, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7, Rule 11 of the Code is one, Order 14, Rule 2 is another.
22. For the purpose of invoking Order 7, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject matter of an order under the said provision.
23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.
24. It is one thing to say that the averments made in the plaint on their face Page 44 of 55 HC-NIC Page 44 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.
25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact of law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject matter thereof, the application for registration of plaint should be entertained."
The principles of law enunciated by the Supreme Court in the abovequoted judgment are undisputed. Applying the above principles to the facts of the present case, the view of this Court, as expressed earlier, that the plaint does not disclose a cause of action and is barred by law for the reason that the Geneva Convention of 1999 does not apply to a private contract, is further strengthened.
59. In Prem Lala Nahata And Another v. Chand Page 45 of 55 HC-NIC Page 45 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT Prasad Sikaria - (2007)2 SCC 551, it is held that:
"Order 7 Rule 11(d) speaks of the suit being "barred by any law". In a case where a plaint suffers from the defect of misjoinder of parties or misjoinder of causes of action either in terms of Order 1 Rules 1 and 3 on the one hand, or Order 2 Rule 3 on the other, CPC itself indicates that the perceived defect does not make the suit one barred by law (here the law being CPC) or liable to rejection. This is clear from Order 1 Rules 3A, 4 and 5, and this is emphasised by Order 1 Rule 9. This is further emphasised by Order 1 Rule 10. This may be contrasted with the failure to comply with Section 80 CPC. In a case not covered by Section 80(2), it is provided in Section 80(1) that "no suit shall be instituted".
This is therefore a bar to the institution of the suit and that is why courts have taken the view that in a case where notice under Section 80 CPC is mandatory, if the averments in the plaint indicate the absence of a notice, the plaint is liable to be rejected. The same could be the position when a suit hit by Section 86 CPC is filed without pleading the obtaining of consent of the Central Government if the suit is not Page 46 of 55 HC-NIC Page 46 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT for rent from a tenant. Not only are there no words of such import in Order 1 or Order 2 but on the other hand, Order 1 Rules 9, 1 and 3, and Order 2 Rules 3 and 6 clearly suggest that it is open to the Court to proceed with the suit notwithstanding the defect of misjoinder of parties or misjoinder of causes of action and if the suit results in a decision, the same could not be set aside in appeal, merely on that ground, in view of Section 99 CPC, unless the conditions of Section 99 are satisfied. (paras 12, 16 and 17).
This was a case where there was a misjoinder of parties and causes of action which, as held by the Supreme Court, would not mean that the plaint would be "barred by any law". In the present case, there is no misjoinder of parties or causes of action, therefore, the above judgment, rendered on facts, would not come to the aid of the plaintiff.
60. In Popat And Kotecha Property v. State Bank of India Staff Association - (2005)7 SCC 510, the Supreme Court held that in that case the plaint was not barred by any law for the following Page 47 of 55 HC-NIC Page 47 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT reasons:
"25. When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo's case, the inevitable conclusion is that the Division Bench was not right in holding that Order 7 Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the nonexecution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years need evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that is barred by any law to attract application of Order 7 Rule 11. This is not so in the present case."
In the case before the Supreme Court, there were several disputed claims and there was no statement in the plaint that showed that it was barred by any law to attract the applicability of Order 7 Rule 11(d). This is not the case in Page 48 of 55 HC-NIC Page 48 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT the plaint under consideration. Here, there is a categorical statement in Paragraph 49 that the plaintiff has a maritime claim based upon the Geneva Convention of 1999. As already discussed hereinabove, the Geneva Convention of 1999 cannot be made applicable to a contract that does not involve public law character, as held by the Supreme Court in Liverpool & London (supra), which has laid down the law on this issue.
61. In Om Aggarwal v. Haryana Financial Corporation And Others - (2015)4 SCC 371, the Supreme Court has held that:
"16. An application for rejection of the plaint can be filed, if the allegations made in the plaint taken to be correct as a whole on its face value show the suit to be barred by any law. The question as to whether a suit is barred by any law or not would always depend upon the facts and circumstances of each case. However, for deciding this question, only the averments made in the plaint are relevant. Since the question of jurisdiction of the Civil Court to entertain and try the civil suit goes to Page 49 of 55 HC-NIC Page 49 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT the very root of the case and hence it can be raised at any time by the defendant by taking recourse to the provisions of Order 7 Rule 11 of the Code. Indeed, this principle of law is well settled."
There can be no two views regarding the above proposition of law that is a wellsettled one. The view taken by this Court that the plaint is liable to be rejected, has been formed after thoughtfully considering the above reiteration of the accepted principle of law.
62. The same principle has been reiterated by this Court in Radhe Krishna Products v. Parshottambhai Dharamshibhai Lungariya - 2015(1) GLH 1, cited on behalf of the plaintiff.
63. The judgment of the Division Bench of this Court in Beena W/o. Kalpeshbhai Amrutlal Lavingia (Soni/ Chowksi) v. Kalpeshbhai Amrutlal Lavingia (Soni/ Chowksi) - 2014(3) GLR 2097 and in the case of Himanshu Madanlal Shah v. Dr.B.M.Poojari - 2005(3) GLH 385 would also not come to the aid of the plaintiff as the Page 50 of 55 HC-NIC Page 50 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT settled principles regarding rejection of plaint under Order 7 Rule 11(d) are reiterated and have already been discussed hereinabove.
64. In the case of Himanshu Madanlal Shah v. Dr.B.M.Poojari (supra), the issue of limitation arose, which the Court held would not be covered under clause (d) of Order 7 Rule 11, as the question of limitation is to be decided as an issue and would not take away the jurisdiction of the Court. Such is not the case in the plaint under consideration, as there is no issue regarding limitation.
65. Similarly, this Court was considering the question of limitation in the case of Bahadurbhai Laljibhai Malhotra v. Ambalal Joitaram Heir of Joitaram Ranchhoddas - 2015(3) GLR 2760, cited by Mr.Rao, counsel for the plaintiff.
66. The view of this Court has been formed on the basis of the averments made in the plaint and the law settled by the Supreme Court and the Division Bench of this Court. Therefore, the Page 51 of 55 HC-NIC Page 51 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT judgment of this Court dated 22.06.2015 in Phaethon International Co. S.A. v. M.V.Americana Admiralty Suit No.17 of 2015 (Coram: Hon'ble Mr.Justice V.M.Pancholi) would not be applicable.
67. It is, no doubt true, that while considering an application for the rejection of a plaint under the provisions of Order 7 Rule 11 of the Code, the Court cannot lose sight of the drastic nature of the power conferred by this provision and its consequences. It has, therefore, to be exercised stringently depending on the facts of each case. The averments made in the plaint are to be read as a whole to find out whether the plaint discloses a cause of action or is barred under any law. The defence put up of the defendant or the stand adopted in the application for the rejection of the plaint cannot be looked into. The recitals in the plaint, and plaint alone, are to be examined. Being conscious of the above legal position and after examining the plaint of the present suit in light of the above, this Court finds that it Page 52 of 55 HC-NIC Page 52 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT has no option but to arrive at the conclusion that the Geneva Convention of 1999 cannot be made applicable to the present dispute, as the MoA executed between the parties is a purely private contract not involving any public law character, held by the Supreme Court in Liverpool & London (supra), followed by the Division Bench of this Court in Croft Sales (supra). That being so, the plaintiff does not have a maritime claim, so as to be entitled to invoke the maritime jurisdiction of this Court. There is, therefore, no cause of action available to the plaintiff under the Admiralty Jurisdiction of this Court and the plaint is liable to be rejected under Order 7 Rule 11(a) of the Code. Further, the plaint is also liable to be rejected under Order 7 Rule 11(d), as being barred by law. The law laid down by the Supreme Court in Liverpool & London (supra) regarding the applicability of the Geneva Convention of 1999, is a binding precedent, to be followed by all Courts in the country. The judgment of the Division Bench of this Court in Page 53 of 55 HC-NIC Page 53 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT Croft Sales (supra) has also taken a similar view based upon the judgment of the Supreme Court which is binding on this Court.
68. Taking into consideration the totality of the facts and circumstances of the case and for the reasons stated hereinabove, this Court arrives at the following conclusion:
The plaint in Admiralty Suit No.10 of 2016 stands rejected.
69. The application is allowed in the above terms, with no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) Ms.Vinita Vinayak, learned advocate for Mr.Bharat T.Rao, learned advocate for the plaintiff, has requested for the stay of the above judgment for a few days. Taking into consideration the legal position as discussed in the judgment, the request is declined.
Direct Service of this judgment, today, is permitted.
Page 54 of 55 HC-NIC Page 54 of 55 Created On Sat Apr 23 02:30:16 IST 2016 O/OJCA/144/2016 CAV JUDGMENT (SMT. ABHILASHA KUMARI, J.) sunil Page 55 of 55 HC-NIC Page 55 of 55 Created On Sat Apr 23 02:30:16 IST 2016