Bombay High Court
Capt Gavin Sequeira And 36 Ors vs M V Malaviya Thirty Six on 22 August, 2025
Author: Abhay Ahuja
Bench: Abhay Ahuja
2025:BHC-OS:14142
47-IA-3689-2024-COMAS-8-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION NO. 3689 OF 2024
IN
COMMERCIAL ADMIRALTY SUIT NO. 8 OF 2024
Capt. Gavin Sequeira & 36 Ors ... Applicants/Original Plaintiffs
In the matter between:
Capt. Gavin Sequeira & 36 Ors ... Plaintiffs
V/s.
M. V. Malaviya Thirty Six ... Defendants
Mr. Shyam Kapadia a/w Mr. Ruchir Goenka, Ms. Sneha Goud and Ms.
Lavanya Chopra i/b Bose & Mitra & Co Advocates for Plaintiff in
COMAS/8/2024
Ms. Revati Desai i/b Mr. Chetan Mali Advocates for Defendant No.5 and
6 in COMAS/16/2025
Ms. Saloni Sulakha a/w. Adv S. Sanghvi i/b Dhaval Vussonji &
Associates Advocates for Defendant No. 3 in COMAS/16/2025
Mr. Prathamesh Kamat a/w Ms. Riddhi Kapadni, Ms. Tuhupiya Kar i/b
Harsh Pratap Advocates for Plaintiff in COMAS/770/2017
Mr. Harsh Sheth a/w Ms Niyati Merchant i/b. MDP Legal Advocates for
Plaintiff in COMAS/16/2025 and COMAS/26/2025
CORAM : ABHAY AHUJA, J.
DATE : 22nd AUGUST 2025
P.C. :
1. Pursuant to earlier orders of this Court, the Interim Application No. 3689 of 2024 in Commercial Admiralty Suit No. 8 of 2024, along with Commercial Admiralty Suit No. 16 of 2025, Commercial Admiralty Suit No. 482 of 2017, Commercial Admiralty Suit No. 770 of 2017 and Commercial Admiralty Suit No. 34 of 2025 and Commercial avk 1/12 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 29/08/2025 22:56:18 ::: 47-IA-3689-2024-COMAS-8-2024.doc Admiralty Suit No. 26 of 2025 have been listed for determination of priorities in respect of claims against the sale proceeds of M.V. Vessel Malaviya Thirty Six and also for payment out of the Applicant's claim amount/decretal amount from the sale proceeds of the Defendant Vessel, presently lying deposited with the Prothonotary & Senior Master of this Court.
2. The Applicants/Plaintiffs No.1 to 36 in Commercial Admiralty Suit No.8 of 2024 are seafarers who were employed on board the Vessel, MV Malaviya Thirty Six under their respective contract(s) of service.
3. The Plaintiffs, not having received their wages, had filed the Suit. The Vessel, MV Malaviya Thirty Six (IMO No.8519083) was arrested by an Order dated 17th January 2019. Applicants/Plaintiffs No. 1 to 36, without prejudice to their rights and contentions, had preferred Company Application (L) No. 548 of 2017 seeking leave of the Company Court exercising its jurisdiction under the Companies Act, 1956, which came to be granted vide its Order of 20 th November 2017. The Vessel eventually came to be sold by Orders dated 11 th February 2019 and 21st February 2019 in Official Liquidator's Report OLR No. 30 avk 2/12 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 29/08/2025 22:56:18 ::: 47-IA-3689-2024-COMAS-8-2024.doc of 2019 in Company Petition No. 756 of 2014 for a sum of INR 8,50,00,000/- (Rupees Eight Crores Fifty Lakhs Only).
4. That by Order dated 07th October 2020, the Applicant/Plaintiff No. 37 M/s Gard P&I (Bermuda) Ltd. Singapore Branch, who were the erstwhile Protection & Indemnity insurers of the Vessel who had arranged for the repatriation of the Applicants/Plaintiffs No. 1 to 36, were impleaded in the Suit.
5. Mr. Shyam Kapadia, learned Counsel for the Applicants/Plaintiffs in Interim Application No. 3689 of 2024 in Commercial Admiralty Suit No. 8 of 2024 submits that by a Judgment and Order dated 21 st June 2022 in Interim Application No. 1819 of 2021, the Suit was partly decreed in favour of Applicants/Plaintiffs and against the sale proceeds of MV Malaviya 36 for an amount of Rs. 3,46,49,157/- (Rupees Three Crores Forty Six Lakhs Forty Nine Thousand One Hundred and Fifty Seven Only) along with interest at the rate of 6% per annum till date of winding up.
6. Mr.Kapadia, learned Counsel further submits that by Order dated 29th April 2024, this Court directed the Office of Sheriff to publish a avk 3/12 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 29/08/2025 22:56:18 ::: 47-IA-3689-2024-COMAS-8-2024.doc notice in newspaper in conformity with the provisions contained in Rule 1087(e) of the Admiralty Rules 1980. Upon an objection taken by the Office of the Sheriff stating that the Sale Proceeds are deposited with the Official Liquidator and not the Learned Prothonotary and Senior Master, Bombay High court, the matter was called up for clarification. This Court vide its Order dated 10 th May 2024 directed the Official Liquidator to transfer the Sale Proceeds to the learned Prothonotary and Senior Master of this Court. Accordingly the sale proceeds were transferred to the account of the Prothonotary & Senior Master and are presently deposited with the Prothonotary and Senior Master.
7. Mr Kapadia, submits that thereafter the Sheriff of Mumbai published the notice inviting claims on 13 th June 2024 in newspaper "Free Press Journal" (English) and "Navashakti" (Marathi) as contemplated under Rule 1087 and 1088 Admiralty Rules specifying, inter alia, that the order of priority of claims against the sale proceeds of the vessel will not be determined until after the expiration of period of 90 days from the date of publication of the notice and that any person having a claim against the ship or proceeds of sale thereof shall file a suit to prove his claim before the expiration of the said period. The said period of 90 days expired on 11th September 2024. avk 4/12 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 29/08/2025 22:56:18 :::
47-IA-3689-2024-COMAS-8-2024.doc
8. Mr. Kapadia, submits that the claims of the Applicants/Plaintiffs in COMAS 8 of 2024 constitute a Maritime Lien under Section 9 (1)
(a) read with Section 10 (1) (a) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 (the "Admiralty Act, 2017") and that the Applicants/Plaintiffs have filed this application for determination of priorities.
9. Mr. Prathamesh Kamat, learned Counsel for the Plaintiffs in Commercial Admiralty Suit No. 770 of 2017 submits that by Judgment and Order dated 14th December 2018, a decree has been passed in favour of Plaintiffs and against the sale proceeds of MV Malaviya 36 for an amount of USD 189,000 alongwith interest at the rate of 6% p.a. till payment/realization from the sale proceeds of the Defendant Vessel presently lying deposited with the Court.
10. Plaintiff in Commercial Admiralty Suit No. 482 of 2017 submits that their claim is for the price of unpaid marine lubricants supplied to the Defendant Vessel and is a Maritime Claim under the Admiralty Act, 2017 and the same is pending as on date.
11. The Plaintiff in Commercial Admiralty Suit No. 16 of 2025 avk 5/12 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 29/08/2025 22:56:18 ::: 47-IA-3689-2024-COMAS-8-2024.doc submit that the Plaintiff's claim is in respect of mortgage of Defendant Vessel and is a Maritime Claim under Section 4 (1) (c) of the Admiralty Act, 2017. The Plaintiff in Commercial Suit No. 26 of 2025 viz. IDBI Bank Ltd claim is also in respect of mortgage of Defendant Vessel and is a Maritime Claim under Section 4(1) (c) of the Admiralty Act, 2017. The Plaintiff in Commercial Admiralty Suit No. 34 of 2025 is a mortgagee in respect of Defendant No.2 therein and its claim against the vessel is a Maritime Claim under Section 4 (1) (c) of the Admiralty Act, 2017. That pursuant to the publication of the notice the aforesaid three suits were instituted and the same are pending as on date.
12. As per the Notice inviting claims, a sum of Rs. 8,50,00,000/- (Rupees Eight Crores Fifty Lakhs Only) is lying deposited in this Court in respect of the sale proceeds of MV Malaviya Thirty Six.
13. To summarise, the following suits are as on date filed against the sale of the Defendant vessel/sale proceeds:
Sr No. Case No. Parties
1. COMAS Gavin Sequeira and 36 Others v. MV
8/2024 Malaviya Thirty Six
2. COMAS/ Kenneth Barry Stewart v. MV Malaviya Thirty 770/2017 Six avk 6/12 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 29/08/2025 22:56:18 ::: 47-IA-3689-2024-COMAS-8-2024.doc
3. COMAS/ Phoenix Arc Private Limited v. MV Malaviya 34/2025 Thirty Six and another
4. COMAS/ IDBI Bank Ltd v. MV Malaviya Thirty Six and 26/2025 others
5. COMAS/ Axis Bank Ltd v. MV Malaviya Thirty Six and 16/2025 others
6. COMAS/ Mars Petrochem Pvt Ltd. v. Sales Proceeds of 482/2017 MV Malaviya Twenty Three and others
14. Before proceeding for the determination of priorities of claims against MV Malaviya Thirty Six, it is useful to set out the relevant provisions viz. Sections 9 and 10 of the Admiralty Act, 2017, which read thus:
"9. Inter se priority on maritime lien.-- (1) Every maritime lien shall have the following order of inter se priority, namely: (a) claims for wages and other sums due to the master, officers and other members of the vessel's complement in respect of their employment on the vessel, including costs of repatriation and social insurance contributions payable on their behalf;
(b) claims in respect of loss of life or personal injury occurring, whether on land or on water, in direct connection with the operation of the vessel;
(c) claims for reward for salvage services including special compensation relating thereto;
(d) claims for port, canal, and other waterway dues and pilotage dues and any other statutory dues related to the vessel;
(e) claims based on tort arising out of loss or damage caused by the operation of the vessel other than loss or damage to cargo and containers carried on the vessel.avk 7/12 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 29/08/2025 22:56:18 :::
47-IA-3689-2024-COMAS-8-2024.doc (2) The maritime lien specified in sub-section (1) shall continue to exist on the vessel notwithstanding any change of ownership or of registration or of flag and shall be extinguished after expiry of a period of one year unless, prior to the expiry of such period, the vessel has been arrested or seized and such arrest or seizure has led to a forced sale by the High Court:
Provided that for a claim under clause (a) of subsection (1), the period shall be two years from the date on which the wage, sum, cost of repatriation or social insurance contribution, falls due or becomes payable.
(3) The maritime lien referred to in this section shall commence--
(a) in relation to the maritime lien under clause
(a) of sub-section (1), upon the claimant's discharge from the vessel;
(b) in relation to the maritime liens under clauses
(b) to (e) of sub-section (1), when the claim arises, and shall run continuously without any suspension or interruption:
Provided that the period during which the vessel was under arrest or seizure shall be excluded. (4) No maritime lien shall attach to a vessel to secure a claim which arises out of or results from--
(a) damage in connection with the carriage of oil or other hazardous or noxious substances by sea for which compensation is payable to the claimants pursuant to any law for the time being in force;
(b) the radioactive properties or a combination of radioactive properties with toxic, explosive or other hazardous properties of nuclear fuel or of radioactive products or waste.
10. Order of priority of maritime claims.--(1) The order of maritime claims determining the inter se priority in an admiralty proceeding shall be as avk 8/12 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 29/08/2025 22:56:18 ::: 47-IA-3689-2024-COMAS-8-2024.doc follows:--
(a) a claim on the vessel where there is a maritime lien;
(b) registered mortgages and charges of same nature on the vessel;
(c) all other claims.
(2) The following principles shall apply in determining the priority of claims inter se--
(a) if there are more claims than one in any single category of priority, they shall rank equally;
(b) claims for various salvages shall rank in inverse order of time when the claims thereto accrue."
15. Section 9, prescribes priority of maritime liens in the order of inter se precedence. In other words, the claim of a claimant falling in Clause (a) of Sub-section (1) of Section 9, would rank highest in priority to that of the claim of a claimant falling in Clause (b) and so on in the succeeding order. Clauses (a) to (e) of Subsection (1) of Section 9 provide the highest priority to the claims for wages and other sums due to the crew members and lowest priority to claims based on tort arising out of loss or damage caused by the operation of the vessel other than the loss or damage to the cargo and containers carried on the vessel, respectively. The rest of the claims, which constitute maritime lien, as defined in Section 2(1)(g) of the Admiralty Act, 2017 fall in between. A claim which falls in entry (a) stands on a higher pedestal than the one falling in Clause (b) which, in turn, gets priority avk 9/12 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 29/08/2025 22:56:18 ::: 47-IA-3689-2024-COMAS-8-2024.doc over the one falling in Clause (c) and so on and so forth.
16. Section 10 of the Admiralty Act 2017, on the other hand, provides for order of priority of maritime claims. Accordingly, under Clause (a) of Sub-section (1) claim of a maritime lien on the vessel, gets first priority, followed by registered mortgages and charges of the same nature on the vessel (Clause-b) and then are ranked all other claims (Clause-c). Sub-section (2) of Section 10 sets out the principles which govern the determination of priority of claims inter se. If there are more claims than one in any single category of priority, they shall rank equally (Clause-a). Salvage claims rank in inverse order of time when the claims thereto accrue.
17. Having set out the provisions of law applicable to determination of priorities and before determining the same in respect of claims discussed above, the nature of those claims are first set out as under:-
Sr. Suit No. Plaintiff Status of Amount Nature of the No. the Suit claim
1. COMAS Gavin Partly Rs.3,46,49,157/- along Maritime lien 8/2024 Sequeira and Decreed with interest at the rate under Section 9 36 Others of 6% per annum till date (1) (a) of winding up.
2. COMAS/ Kenneth Barry Decreed USD 189,000 along with Maritime lien 770/2017 Stewart 6% interest p.a. from under Section 9 10.08.2017 till (1) (a) payment/realization.avk 10/12 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 29/08/2025 22:56:18 :::
47-IA-3689-2024-COMAS-8-2024.doc
3. COMAS/ Phoenix Arc Pending Rs.44,43,46,286/- as on Maritime claim 34/2025 Private filed on 4th December 2017 under Section Limited 09.09.2024 together with interest. 4(1) (c)
4. COMAS/ IDBI Bank Ltd Pre- Rs.360,29,01,519.08/- as Maritime claim 26/2025 admission per particulars of claim, under Section filed on annexed at Exhibit 'J'. 4(1) (c) 11.09.2024
5. COMAS/ Axis Bank Ltd Pre- Rs.362.39 Crores as per Maritime claim 16/2025 admission particulars of claim under Section filed on annexed at Exhibit 'M'. 4(1) (c) 08.01.2025
6. COMAS/ Mars Pending Rs.1,04,29,523/- with Maritime claim 482/2017 Petrochem Pvt filed on interest on Ltd. 24.04.2017 Rs.94,29,523/- at the contractual rate of 12% per annum from filing till realization.
18. Having set out the nature of the claim of each of the claimants as above, and upon application of Section 9 read with Section 10 of the Admiralty Act, 2017, on the determination of priorities, this Court proceeds to determine the priorities of the claims in the case of M.V. Malaviya Thirty Six as under:
Sr. Suit No. Plaintiff Status of the Amount Nature of Order of No. Suit the claim priority of the Claim(s)
1. COMAS Gavin Partly Rs.3,46,49,157/- Maritime 1st 8/2024 Sequeira and Decreed along with interest at lien 36 Others the rate of 6% per under annum till date of Section 9 winding up. (1) (a)
2. COMAS/ Kenneth Barry Decreed USD 189,000 along Maritime 1st 770/2017 Stewart with 6% interest p.a. lien from 10.08.2017 till under payment/ realization Section 9 (1) (a) avk 11/12 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 29/08/2025 22:56:18 ::: 47-IA-3689-2024-COMAS-8-2024.doc
3. COMAS/ Phoenix Arc Pending Rs.44,43,46,286/- as Maritime 2nd 34/2025 Private (filed on on 4th December claim Limited 09.09.2024) 2017 together with under interest. Section 4(1) (c)
4. COMAS/ IDBI Bank Ltd Pre- Rs.360,29,01,519.08 Maritime 2nd 26/2025 admission /- as per particulars claim filed on of claim, annexed at under 11.09.2024 Exhibit 'J'. Section 4(1)(c)
5. COMAS/ Axis Bank Ltd Pre- Rs.362.39 Crores as Maritime 2nd 16/2025 admissiFiled per particulars of claim on claim annexed at under 08.01.2025 Exhibit 'M'. Section 4(1)(c)
6. COMAS/ Mars Pending Rs.1,04,29,523/- Maritime 2nd 482/2017 Petrochem Pvt filed on with interest on claim Ltd. 24.04.2017 Rs.94,29,523/- at the contractual rate of 12% per annum from filing till realization.
19. The two claims above which have been ranked 1st will take first equally from the sale proceeds lying in this Court after which the claim ranked 2nd will take from the balance remaining, subject of course to the pending Suits being decreed. It is clarified that payment out on the basis of the aforesaid priorities will be subject to the amounts decreed in the Suit(s).
20. Interim Application is accordingly allowed and disposed in the above terms.
(ABHAY AHUJA, J.) ARTI VILAS KHATATE avk 12/12 Digitally signed by ARTI VILAS KHATATE Date: 2025.08.26 10:47:15 +0530 ::: Uploaded on - 26/08/2025 ::: Downloaded on - 29/08/2025 22:56:18 :::