Calcutta High Court
Birla Corporation Ltd vs The Owners And Parties Interested In The on 9 April, 2019
Author: Arindam Sinha
Bench: Arindam Sinha
ORDER SHEET
GA NO.3105 OF 2018
WITH
AS NO.4 OF 2017
GA NO.57 OF 2018
IN THE HIGH COURT AT CALCUTTA
Admiralty Jurisdiction
ORIGINAL SIDE
BIRLA CORPORATION LTD.
Versus
THE OWNERS AND PARTIES INTERESTED IN THE
VESSEL MV HERMANN SCHEPERS & ANR.
BEFORE:
The Hon'ble JUSTICE ARINDAM SINHA
Date : 9th April, 2019.
MR.RATNANKO BANERJEE, SR.ADVOCATE, MR.SWATARUP BANERJEE, MR.S.BANERJEE, MR.S.K. CHAKRABORTY,
MRS.A.DAS, ADVOCATES FOR APPLICANT
MR.TILAK KR.BOSE, SR.ADVOCATE, MR.S.MUKHERJEE, MR.DEBRAJ SAHU, MR.B.MUKHERJEE, ADVOCATES FOR
RESPONDENTS
The Court : This application by the owners is for vacating or modification of order dated 18th December, 2017, itself modified by orders dated 9th and 19th January, 2018.
Mr.Banerjee, learned senior advocate appears on behalf of applicant and submits, a sum of Rs.12,25,00,000/- was directed to be deposited. His client deposited the same. Prima facie satisfaction 2 obtained for making such direction would appear from ex parte order dated 18th December, 2017 made by co-ordinate Bench. The order says, plaintiff's surveyor estimated loss caused to the jetty, damaged on applicant's ship colliding with it, and underneath water pipes to be Rs.10,25,00,000/-. This loss was taken into account and direction made for deposit as security, Rs.12,25,00,000/-. Mr. Banerjee submits, addition of Rs.2.5 crores over alleged loss estimated by plaintiff's surveyor was on coordinate Bench having taken into consideration plaintiff's further claim of production loss of Rs.10 lakhs per day from 20th December, 2017 onwards due to non-supply of water to its factory.
He hands up copy of plaint and draws attention to therein annexed joint inspection report of damaged jetty. He demonstrates the report is with regard to finding on damage caused to the jetty. Marine surveyor engaged by plaintiff attempted quantification of loss as endorsed above signature and stamp of the surveyor. On query from Court he submits, insurer of plaintiff was present in joint survey as apparent from paragraph 16 of the plaint.
Mr.Bose, learned senior advocate appears on behalf of plaintiff and submits, there have been two prior applications of similar nature in which the owner was unsuccessful. This is third attempt. By order dated 18th December, 2017 coordinate Bench had obtained prima facie satisfaction of his client having a maritime claim against the vessel. 3 Hence, order of arrest pending release on deposit of security. There should be no modification or variation.
Expert opinion on extent of damages is possible. Estimate of cost of loss would imply replacement of what is damaged. This basis for arriving at estimate of cost of loss does not appear from the endorsement on joint inspection report dated 16th December, 2017. Plaintiff's insurer would not pay a claim to the insured on basis of replacement cost. The insurer, being part of joint inspection team, did not hazard an estimate of loss. Naturally so. Furthermore, it does not appear from order dated 18th December, 2017 as to why the increase for amount of security, by Rs.2.25 crores. Court is prepared to accept the basis from plaintiff on proof of loss on demonstration of costs incurred for obtaining water supply from elsewhere and replacement of pipes.
List on 23rd April, 2019.
(ARINDAM SINHA, J.) sb.