Calcutta High Court
Proactive Ship Management Pvt. Ltd vs Green Ocean-1 And Ors on 13 April, 2021
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
OD-1 ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Admiralty Jurisdiction
ORIGINAL SIDE
IA NO. GA/3/2021
In AS/2/2021
PROACTIVE SHIP MANAGEMENT PVT. LTD.
Versus
GREEN OCEAN-1 AND ORS.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date : 13th April, 2021.
Appearance :
Mr. Anuj Singh, Adv.
Mr. S. E. Huda, Adv.
Ms. Rashmi Basu, Adv.
... for the plaintiff.
Mr. Krishnaraj Thakkar, Adv.
Mr. Rudrajit Sarkar, Adv.
Mr. D. C. Kabir, Adv.
Mr. Debangshu Dinda, Adv.
Ms. S. Thaker, Adv.
Mr. R. K. Mitra, Adv.
Mr. Piyush Jain, Adv.
... for the applicant.
Ms. Hari Narayan, Adv.
The Court: This is an application by Green Ocean Seaways Pvt. Ltd. in short 'GOSPL' being not a party to the suit inter alia, for recalling and/or vacating the order of arrest of MV Green Ocean-1 (hereinafter referred to as the said Vessel) on the ground that it is the owner of such Vessel and, as such, the said vessel could not have been arrested for the purpose of providing security against a maritime claim owed to be plaintiff by the defendant no.2. GOSPL says that under an agreement 2 dated 26th June, 2020 it had agreed to purchase the said vessel from the defendant no.2 at a total consideration of INR 1.25 crores plus GST. GOSPL refers to a bill of sale (at page 38 of its application) dated 20th June, 2020 and other documents in support of its ownership of the Vessel. GOSPL refers to a letter issued by the defendant no. 2 to be Shipping Master for issuance of "no objection certificate" regarding payment of wages which is dated 24th June, 2020. It also refers to another letter of the defendant no. 2 also dated 24th June, 2020 to show that the original bill of sale was submitted. GOSPL further refers to the declaration of ownership dated 22nd March, 2021 (at page 39 of the application) and the Certificate of Indian Registry dated 1st April, 2021 in further support of its ownership. Referring to these documents, GOSPL says that the transfer which was agreed upon on 26th June, 2020 had fructified ultimately on 22nd March, 2021 with the issuance of Declaration of Ownership and Certificate of Indian Registry on 1st April, 2021. It is also submitted by GOSPL that the steps taken and the documents relied upon in support of ownership are steps pursuant to the agreement in terms of the Merchant Shipping Act, 1958 (hereinafter referred to as the 1958 Act) required to effect the transfer. GOSPL then, by referring to the provisions of Section 5(1)(a) of the Admiralty (Jurisdiction of Settlement of Maritime Claims) Act, 2017 says that arrest of any Vessel can be made for the purpose of providing security against a maritime claim, if the person who owned the Vessel at the time when the 3 maritime claim arose is liable for the claim and is the owner of the Vessel when the arrest is effected. GOSPL says that assuming without admitting that the maritime claim arose at a time when the defendant no. 2 was the owner of the said Vessel then also the second part of Section 5(1) (a) of the 2017 Act is not satisfied on the date of arrest. Even if the provisions of Section 5(2) of 2017 Act is taken into account, then also, according to GOSPL, the same is subject to the provisions of sub-Section (1) (a) of Section 5 and admittedly on 9th April, 2021.. Going by either of the provisions of Section 5 (1) or Section 5(2),the arrest could not have been made on 9th April, 2021 when the defendant no. 2 was not the owner of the said Vessel. The plaintiff, according to GOSPL suppressed the material fact though aware of the same to mislead this Court to obtain the order of arrest. According to GOSPL, the documents relied upon by it in support of its claim of ownership shall be presumed to be genuine in view of the provisions of Section 3 of the Commercial Documents Evidence Act, 1939 read with clause (7) of part I of the Schedule to the said Act.
Objecting to the submissions made on behalf of GOSPL, it is submitted on behalf of the plaintiff that the plaintiff has not suppressed any materials fact or has attempted to mislead this Court while obtaining the arrest of the said Vessel on 9th April, 2021. By referring to clauses (1) and (3) of the agreement dated 26th June, 2020, the plaintiff submits that the payment was to be made on delivery of the Vessel but not later 4 than three banking days after the date that notice of readiness has been given in accordance with clause (5). The time and place of delivery and notices have been specified in clause (5) of the said agreement. By referring to the bill of sale dated 20th June, 2020, the plaintiff says that the defendant no. 2 acknowledges receipt of Rs. 1.25 crores being the sale consideration on 20th June, 2020 when the agreement for sale is dated 26th June, 2020. The plaintiff says that the agreement and the bill of sale are documents prepared in collusion and connivance between defendant no. 2 and GOSPL to evade the maritime claim of the plaintiff. It is also submitted that the defendant no. 2 and GOSPL are controlled by the same set of person and, as such, they have devised the agreement and the transfer documents to deprive the plaintiff of its legitimate claims. Referring to Section 42(4) of the 1958 Act, it is submitted by the plaintiff that none of the documents relied upon by GOSPL in support of its ownership conforms with the provisions of the said Section. The transaction between the defendant no. 2 and GOSPL should therefor be held to be a sham transaction and the arrrest of the Vessel should be allowed to continue.
In reply, GOSPL says that the plaintiff is manning the said Vessel and has raised invoices for such service on 1st March, 2021 for the month of February, as will appear from page no. 43 of its application. The plaintiff, therefor, was well aware that the ownership of the said 5 Vessel had long been transferred to GOSPL by the defendant but still did not bring this to the notice of the Court accordingly.
After considering the respective submissions and the materials on record, I find that the maritime claim of the plaintiff arose with regard to its transaction with the defendant no. 2 concerning a Vessel, Madurai Meenakshi bearing IMO -9210347. The plaintiff can, for such maritime claim, have any other vessel of the defendant no. 2 arrested under the provisions of Section 5(2) of the 2017 Act. However, the arrest of any vessel of the defendant no. 2, as in the instant case, has to be in compliance with the provisions of Section 5(1) of the 2017 Act. The documents produced by the GOSPL and the chain of events with regard to obtaining such document prima facie establish the ownership of the said Vessel by GOSPL. The prima facie view as to ownership is further strengthened by the provisions of Section 3 of the Commercial Documents Evidence Act, 1939. The documents mentioned in Part I of the Schedule to the 1939 Act referred to by GOSPL in support of its ownership convinces this Court as to its ownership as on the date of arrest i.e. 9th April, 2021. Once the ownership of GOSPL is established, the arrest of the said Vessel cannot be allowed to continue in view of the provisions of Sections 5 (1) and (2) of the 2017 Act. The Vessel, Green Ocean -1 is therefor released and the order dated 9th April, 2021 passed in GA No. 2 of2021 filed by the plaintiff in the instant admiralty suit stands vacated. However, the issue of undertaking by the plaintiff as 6 directed in the order dated 9th April, 2021 shall be considered at a subsequent stage when the main matter is heard.
GOSPL had made a claim for damages in this application though it is not a party to the suit. This issue and other pending issues as maritime claim of the plaintiff can be gone into more effectively after filing of affidavits. Let affidavit-in-opposition be filed within three weeks from date; affidavit-in-reply within two weeks thereafter.
Liberty to mention for inclusion in the list after three weeks. The Marshall of this Court is directed to forthwith communicate this order of release by fax or electronic mail or through any other accepted mode and take necessary step for release of the said Vessel, Green Ocean -1 along with her tackle, hull, engine, equipment, apparels, furniture and all movables lying on board. The Marshall of this Court shall also communicate this order of release to the concerned Port Authorities at Port Blair and Kolkata, Customs Authorities, Port Blair Administration, the Maritime Police at Port Blair, Coastguard and the commandant of CISF.
The Marshall and all authorities shall act on a server copy of this order without insisting for a certified copy thereof.
(ARINDAM MUKHERJEE, J.) mg/s. chanda