Gujarat High Court
Zatrix Limited, vs Mv Nikiforos (Imo 9108116) (Ex-Name - Mv ... on 9 April, 2018
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/AS/37/2017 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (OJ) NO. 1 of 2017
IN R/ADMIRALITY SUIT NO. 37 of 2017
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MV NIKIFOROS (IMO 9108116) (EXNAME MV GO TRADER) AND HER OWNERS Versus ZATRIX LIMITED, ========================================================== Appearance:
MS ANUJA S NANAVATI for the PETITIONER(s) No. MS PAURAMIB SHETH for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 09/04/2018 IA ORDER
1. By way of this application, the applicant has prayed for the following reliefs "A. Allow the present civil application;
B. Set aside and vacate the order of arrest of the Vessel dated 4.12.2017 passed by this Hon'ble Court and the Applicant vessel be directed to be released;
C. Order and direct the Respondent (Original Plaintiff) above named to furnish counter security in the sum of USD 205,755 and further damages at the rate of USD 15,000 per day for losses/damages/prejudice suffered in view of the order of arrest dated 4.12.2017 passed at the instance of the plaintiff against defendant No.1 Vessel m.v. NIKIFOROS along with interest at the rate of 18% p.a., plus reasonable legal costs towards damages from the date of wrongful arrest of the vessel till payment and/or realization;
D. In the alternative to prayer clause
(C), appoint a Commissioner for taking
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accounts to quantify the applicant's losses and damages and direct the Respondent (original Plaintiff) to pay to the Applicant such sums as found due and payable upon such finding of the Commissioner.
E. In the Alternative, Should security be furnished by the Applicant during the pendency of this Application as a security for release of the Applicant vessel, then such security be directed to be returned to the Applicant forthwith;
F. Pending hearing and final disposal of this application, order and direct the Respondent to furnish counter security to this Hon'ble Court in the sum of USD 205,755 for losses/damages/prejudice suffered in view of the order of arrest dated 4th December 2017 passed at the instance of the plaintiff against defendant No.1 Vessel - m.v. NIKIFOROS.
G. Grant ad interim reliefs in terms of prayers B to F above.
H. Order for costs of this application in favour of the Defendant and against the plaintiff"
2. Heard Mr. Devang Nanavati, learned counsel with Ms. Prachiti Shah for Ms. Anuja Nanavati, learned advocate for the applicant and Mr. Saurabh Soparkar, learned senior counsel assisted by Ms. Paurami B. Sheth, learned advocate for the respondent.
3. The applicant is the defendant in the main suit and the respondent is the original plaintiff.
The parties are addressed hereinafter as per Page 2 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER
their position in the original suit.
4. The parties have also submitted written submissions in form of gist of submissions made on behalf of the parties.
5. That by an order dated 04.12.2017 passed by this Court in Admiralty Suit No.37/17, the defendant vessel 'M.V. NIKIFOROS' came to be arrested at Dahej within the territorial jurisdiction of this Court. It is a matter of record that the defendant herein tendered a purshis dated 15.12.2017 and have deposited an amount of Rs.3,41,44,852/ and on basis of the same, the said amount being equivalent to USD 531,272, the order of arrest came to be modified by an order dated 15.12.2017.
6. Mr. Nanavati, learned counsel appearing for the defendant has contended as under i. That the present suit is completely vexatious, malafide and bad in law and that the plaintiff has suppressed material facts and relevant documents and therefore, the suit itself deserves to be dismissed and the application deserves to be allowed.
ii. It is further contended by learned counsel for the defendant that the applicant is a bonafide purchaser for value of the defendant vessel with the unequivocal, Page 3 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER unconditional and express written consent of the plaintiff and that the defendant is the owner of the defendant vessel.
iii.It was also further contended that there is no privity of contract between the plaintiff and the defendant and that the defendant is neither a party nor privy to the shareholders agreement dated 27.05.2015, loan agreement dated 27.05.2015 and settlement agreement dated 06.12.2016 and therefore, none of the aforesaid documents are binding on the defendant.
iv. That there is no maritime lien, charge, hypothecation, first preferred charge against the defendant vessel in favour of the plaintiff.
v. Referring to the contentions of para 12 of the plaint in particular, it is submitted that the plaintiff has deliberately and falsely referred to the erstwhile owner in their pleadings as owners and that the defendant is neither aware nor a party to the agreement dated 06.12.2016. It is also further contended that the plaintiff has filed proceedings for recovery of an amount of USD 323,000 from the erstwhile owner in terms of the agreement dated 06.12.2016.
That the plaintiff chased the owners for
three months before withdrawing from the
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settlement agreement dated 06.12.2016 and it is further contended that the plaintiff has deliberately and falsely referred to the erstwhile owner as the owner in their pleadings. It is also contended that correspondences were exchanged between the plaintiff and the erstwhile owners regarding execution of shareholder agreement for a period of three and half months after the sale of the defendant vessel to the defendant. It is therefore contended that the conduct of the plaintiff is indicative of the fact that the disputes are purely post sale contractual disputes between plaintiff and the erstwhile owners and the same do not constitute any maritime claim and/or lien whatsoever against the defendant or the defendant vessel.
7. Mr. Nanavati, learned counsel for the defendant in order to substantiate the contentions raised, has relied upon the email dated 30.11.2016 addressed by the defendant to the erstwhile owners and the plaintiff, email dated 01.12.2016 addressed by erstwhile owners to the defendant and plaintiff, email dated 05.12.2016 from defendants to the erstwhile owners with a copy to plaintiff, email dated 06.12.2016 from plaintiff to the defendant and erstwhile owner consenting sale of the vessel, email dated 06.12.2016 from advocate of the plaintiff to the Page 5 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER defendant as well as erstwhile owners consenting to the sale of vessel and has contended that the aforesaid material facts have been suppressed. It is further contended by Mr.Nanavati that if the aforesaid correspondence would have been brought on record, it would be evident that the sale of defendant vessel in favour of the defendant was consented by the plaintiff as well as his advocate and even though the plaintiff was well aware about the same, such material facts have been suppressed. Mr. Nanavati also contended that mere reference to some of the aforesaid email correspondence would not absolve the plaintiff of being guilty of suppression of material fact and the relevant documents have not been brought on record and therefore, on the aforesaid ground, the suit deserves to be dismissed.
8. Similarly, in order to buttress the argument that defendant is the bonafide purchaser for value of the defendant vessel, Mr.Nanavati has relied upon the agreement to sell dated
02.10.2016, email dated 28.11.2016 from erstwhile owners to the plaintiff informing the plaintiff of sale of defendant vessel. Mr. Nanavati, referring to the email dated 30.11.2016 addressed by defendant to the plaintiff and erstwhile owner contended that by the said communication, in fact the defendant informed the erstwhile owners as well as the Page 6 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER plaintiff that they will not proceed with purchase formalities unless the plaintiff withdraws their email dated 29.11.2016. Mr. Nanavati has further relied upon the email dated 01.12.2016 as well as 05.12.2016. Further relying upon the consent given by the plaintiff to the defendant vide email dated 06.12.2016 as well as email of even date addressed by the advocate of the plaintiff to the defendant and erstwhile owners, it was contended that on consent being received, the purchase formalities were completed by the plaintiff and therefore, it was contended that the defendant became owner of the defendant vessel on 07.12.2016. It was further contended by Mr. Nanavati that even though the said facts are known to the plaintiff, a deliberate and false statement has been pleaded in the plaint as if erstwhile owners are owners of the vessel and not the defendant. Referring to the proceedings which are pending before the Greek courts, it was contended by Mr. Nanavati that the plaintiff has admitted that defendant has purchased the vessel for USD 2,125,000. It was therefore contended that the plaintiff has disclosed only self serving facts and documents and conveniently suppressed material documents, which if disclosed would have disentitled the plaintiff from getting any reliefs much less any exparte ad interim relief from this Court.
Page 7 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019C/AS/37/2017 IA ORDER 9. Mr. Nanavati has relied upon the following
judgments to support the aforesaid contentions S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1, page 5 relevant para 6;
Amar Singh v. Union of India, (2011) 7 SCC (Civ) 560 at page 87 relevant paras 53, 54, 5660;
S.J.S. Business Enterprises (P) Ltd. v. State of Bihar, (2004) 7 SCC 166 at page 173 relevant para 13;
St. George Shipping Co. Ltd. v. M.V. "IRENE P" a foreign flag, 1999 SCC Online Bom 217 (1999) 3 Mah LJ 109 at page 113 relevant paras 13, 2223 and M.V. Asean Jade v. Jaisu Shippingg Com. Pvt. Ltd. 2002 SCC Online Guj 56: AIR 2003 Guj 241 at page 250 relevant para 10.1.
10. Mr.Nanavati further contended that there is no privity of contract between plaintiff and defendant. It was also contended that defendant is not a party to shareholders agreement, loan agreement as well as settlement agreement. Relying upon the judgments of M.V. Leonis thro. Her Master, Prominent Shipping Pte. Ltd. vs. Libra Shipping Services LLC and Ors. reported in 2009(0) GLHELHC 222106, Raj Shipping Agencies v. M.V. "Bunga Mas Tiga", 2001 SCC Online Bom 325: (2001) 4 Mah LJ 324 page 328 and Kuok Oils & Grans PTE Ltd. vs. Tower International Pvt. Ltd. Delhi, 2004 SCC Online Guj 89: AIR 2005 Guj 9:(2005) 1 GCD 57: (2005) 1 CCC 499 12, it was contended by Mr. Nanavati that defendant is not Page 8 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER a party nor privy to the aforesaid agreements dated 27.05.2015 and agreement dated 06.12.2016 and therefore, the same is not binding on the defendant.
11. Mr. Nanavati further contended that Contonou Court on similar facts by its order dated 29.07.2017 vacated the order of arrest of the defendant vessel on the premises that the loan agreement does not create any maritime claim under the provisions of 1952 Convention and therefore, it was contended that plaintiff cannot reagitate the same claim upon similar facts which has already been adjudicated under the Arrest Convention of 1952 and Mr. Nanavati further relied upon the judgment of the Apex Court in the case of M.V. Elisabeth reported in 1993 Supp (2) SCC 433.
12. It was further contended that the shareholders agreement dated 27.05.2015 between the plaintiff, the erstwhile owners and others neither creates any charge or hypothecation on the defendant vessel in favour of the plaintiff and the claim raised by the plaintiff is not supported even by documents disclosed by the plaintiff itself. Relying upon the contents of the shareholder agreement, it was contended by Mr. Nanavati that the same is not binding to the defendant and there is no hypothecation or claim over the defendant vessel.
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13. It was contended by Mr. Nanavati that as per the agreement dated 02.10.2016, the defendant vessel was delivered to the defendant free from all encumbrances, mortgages, maritime liens, debts and claims as more particularly provided under clause 2(h) and clause 2(i) of the private agreement dated 02.10.2016, which is placed on record of the Civil Application at Exhibit C.
14. Mr. Nanavati, referring to the bill of sale issued pursuant to the agreement of sale dated 02.10.2016 contended that the said bill specifically records that the vessel is transferred free from all encumbrances, mortgages and maritime lien and therefore, the plaintiff cannot now contend contrary to the same. It was further contended that even the proceedings initiated before the Courts in Greece which is in fact suppressed by the plaintiff, the plaintiff admits that the defendant has purchased defendant vessel from erstwhile owners for USD 2,125,000. In order to buttress the contention that there is no maritime lien, Mr. Nanavati has relied upon the judgment of Epoch Enterrepots v. M.V. Won Fun, (2003) 1 SCC 305: (AIR 2003 SC 24 at p.33), Western Ship Breaking Industry vs. Laiki Bank (Hellas) S.A. (07.07.2006 GUJHC):MANU/GJ/8251/2006 and Dallah Albaraka Investment Co. Ltd. Vs. MT "Symphony 1" ex. MT "Arabian Lady & Anr., 2005 SCC Online Bom 825.
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15. Mr. Nanavati, further referring to item no.6 of the shareholders agreement dated 27.05.2015 contended that the said clause as averred in para 5 of the plaint only requires consent of the plaintiff for sale of any assets of the Company. Mr. Nanavati further contended that as such, defendant is not party to the said agreement and even otherwise, such consent was given by the plaintiff on 06.12.2016 to the defendant and the said consent is in compliance with item no.6 of the shareholders agreement dated 27.05.2017.
16. Mr. Nanavati contended that the defendant was neither aware nor party to the loan agreement dated 27.05.2015, which is between plaintiff and erstwhile owners and others and it was contended that as per clause 10, 4 debtors were made liable for repayment of loan. Clause 6 of the loan agreement does not create charge or hypothecation over the defendant vessel but the same only recites about internal arrangement with the lenders and 4 debtors to the application of the collective earnings and income of the 4 debtors.
17. Mr.Nanavati referring to paras 18 and 19 of the plaint contended that any hypothecation or charge is required to be registered with the ship registry where the ship is registered and when the consent was given by the plaintiff for Page 11 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER sale of the defendant vessel, plaintiff did not put the defendant to any such condition and/or charge or hypothecation and therefore, the plaintiff cannot now contended to exercise a first preferred hypothecation/charge to the prejudice of the defendant.
18. Referring to averments made in para 12 of the plaint, it is contended by Mr.Nanavati that deliberately, a false statement is made wherein the erstwhile owner is referred to as the owner in the pleadings. It is further contended that the defendant was not a party to the private settlement agreement between plaintiff and erstwhile owners dated 06.12.2016 and therefore, the said agreement is not at all binding to the defendant. It was contended by Mr. Nanavati that nonperformance of the agreement dated 06.12.2016 can only bind the erstwhile owners and not the defendant.
19. Mr.Nanavati, further referring to the proceedings of the Greek Court contended that plaintiff has admitted of having received USD 323,000 from erstwhile owners in terms of the agreement dated 06.12.2016 and the only material breach being complaint of by the plaintiff is purported failure of the erstwhile owners to execute certain shareholder agreement as per the agreement dated 06.12.2016 for which the defendant who is a bonafide purchaser cannot be Page 12 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER held to be liable. It was contended that the defendant is bonafide purchaser of the defendant vessel with the consent of the plaintiff and are not privy to the private settlement dated 06.12.2016.
20. Mr. Nanavati, referring to the documents on record contended that as such correspondences were exchanged between the plaintiff and the erstwhile owners in relation to the execution of the shareholder agreements for a period of three and half months after sale of the defendant vessel to the defendant. Mr. Nanavati therefore contended that the conduct of the plaintiff is indicative of the fact that the disputes are purely post sale contractual disputes between the plaintiff and the erstwhile owners and the same do not constitute any maritime claim or lien whatsoever against the defendant or the defendant vessel. It was contended that what is complained of is breach committed by erstwhile owners after completion of sale and delivery of the defendant vessel to the defendant. On the aforesaid contentions, it was therefore contended by Mr. Nanavati that the application deserves to be allowed.
21. Per contra, Mr. Soparkar learned counsel appearing for the plaintiff has contended as under -
1) That there is no suppression much less any Page 13 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER suppression of material facts by the plaintiff.
2) Mr. Soparkar contended that email dated 06.12.2016 was conditional and the plaintiff did not give unconditional consent for transfer of defendant vessel. Mr. Soparkar contended that consent was subject to fulfilling of terms and conditions mentioned in the private settlement and release agreement dated 06.12.2016.
3) Referring to the agreement dated 27.05.2015, it was contended by learned counsel for the plaintiff that as per clause 6 of the said agreement, reserved matters is provided for consent for sale of vessel and the learned counsel also relied upon ScheduleI of the said agreement.
4) Also referring to the loan agreement dated 27.05.2015, it was contended by Mr. Soparkar that on combined reading of the term lenders and clause 6 of the said agreement makes it clear that unless consent is given, vessel cannot be sold.
5) Mr. Soparkar further contended that it is not in dispute that the owner of the defendant vessel tried to sell her without prior consent of the plaintiff for which an agreement came to be executed on 02.10.2016 and the plaintiff Page 14 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER was informed about the same for the first time only on 28.11.2016.
6) Relying upon the email dated 2.11.2016, it was contended that the plaintiff replied to the same and did not consent for sale of the defendant vessel. It was further contended that the private settlement and release agreement is executed between parties wherein certain conditions are mentioned and the plaintiff agreed to permit sale of the defendant vessel on fulfillment of such conditions and therefore, it was contended that the consent given by email dated 06.12.2016 was conditional.
7) It was contended that plaintiff has not withdrawn its objection nor has given its unconditional consent as suggested by the defendant. It was contended that before the email dated 06.12.2016, certain events have taken place which establishes that the original owner had no right to sell the defendant vessel without consent of the plaintiff. It was contended that by an agreement dated 06.12.2016, the plaintiff gave consent subject to fulfillment of conditions mentioned therein. It was contended that unless and until the conditions are fulfilled, the release of claim for alleged illegal sale of vessel would survive. It was also Page 15 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER contended that in the event the conditions are not satisfied, right of the plaintiff under old agreement continues, resultantly, the consent of the plaintiff for sale becomes nonest and the email dated 06.12.2016 has to be read in this context only.
8) It was further contended by learned counsel for the defendant that the contention raised by the defendant that it has proceeded to complete transfer and registration and that the email dated 14.03.2017 was addressed by the plaintiff to the erstwhile owner and that the defendant is not concerned is an attempt to oversimplify the whole issue.
9) It was contended that whether the defendant is aware or not aware about the agreement dated 06.12.2016 as the permission was given by the plaintiff to the owner (erstwhile owner) was subject to fulfillment of conditions and so long as the same had not been fulfilled, the title would not pass and the title would be defective and the erstwhile owner Nikiforos could not have passed title in favour of the defendant and that the plaintiff would be able to prove the same at the trial.
10)On the aforesaid grounds, it was therefore also contended that nonproduction of email dated 06.12.2016 would not amount to material suppression and the plaintiff has produced the Page 16 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER agreement dated 06.12.2016 with the plaint. It was therefore contended that the submission of the defendant on nonproduction of the said email would amount to rejection of the plaint at this stage.
11)Relying upon the judgment of the Apex Court in the case of Mayar (H.K.) Ltd. and Ors. vs. Owners & Parties, Vessel M.V. Fortune Express and Ors. reported in 2006(3) SCC 100, it was contended that material suppression needs to be proved at the trial and cannot be suppression of material facts.
12)Similarly, it was contended by learned counsel for the plaintiff that the judgment of the S.P. Chengalvaraya Naidu (supra) clearly shows that it was not decided at the interim stage but effect of fraud is concluded only at the final stage.
13)It was contended that Amar Singh (supra) reported (2011) 7 SCC 69 is a decision rendered in a writ petition and there are different principles on writ and suit and again not at the interim stage so it is premature at this stage to rely on suppression of facts and therefore it was contended that the aforesaid judgment would not apply to the present case.
14)It was asserted that the plaintiff has Page 17 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER maritime claim and in view of the facts
arising in this case, the ownership cannot be said to have been changed. It was contended that the case of the plaintiff falls under Article 1 (v) of 1999 convention and alternatively the plaintiff has hypothecation which has priority of payment.
15)It was also contended that the judgment relied upon by the defendant in the case of Chrisomar Corporation v. MJR Steels Private Ltd. reported in 2017 SCC Online 1104 is also a case after the trial and not at the interim stage. It was also contended that the other judgments relied upon by the learned counsel for the defendant to show that it is not a maritime claim have no relevance and are therefore not required to be dealt with.
16)It was contended that the contention raised by the defendant that there is no privity of contract with the plaintiff is on footing that the sale is valid and they have become the owners. It was reiterated by the learned counsel for the plaintiff that the plaintiff gave only conditional consent and as there has been breach, the erstwhile owners could not have passed the title and the evidence has to be led and without it, it cannot be concluded that there is no privity of contract.
17)It was further submitted that it is the case Page 18 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER of the plaintiff that by virtue of original agreement no sale could have taken place without permission of the plaintiff and under agreement dated 06.12.2016, permission was granted subject to fulfillment of conditions which have not been fulfilled and hence, the permission for sale stood revoked as if it was never granted. It was contended that even otherwise, said issue would require adjudication and at present the present application is at the stage of return of security and for all practical purposes for rejection of the suit under order 7 Rule 11 and if the same is granted, the plaintiff will be non suited without going for trial.
18)Relying upon the judgment of the Apex Court in the case of VSNL v. MV Kapital Kud reported in 1996 (7) SCC 127, it was contended that the plaintiff has a strong and reasonably arguable case and balance of convenience is also in its favour and therefore, it was contended that the application deserves to be dismissed.
22. Mr. Nanavati, learned counsel appearing for the defendant in his further argument contended that the plaintiff has put forward two grounds which are not pleaded in the plaint. It was contended that the sale of defendant vessel to the defendant was conditional to the agreement dated 06.12.2016.
Page 19 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019C/AS/37/2017 IA ORDER 23. Mr. Nanavati contended that consent of the plaintiff in two emails dated 06.12.2016 was
unequivocal and unconditional and it is clearly mentioned in the said emails that the plaintiff consents to the sale of the defendant vessel to the defendant as per the sale agreement dated 02.10.2016 as amended.
24. It was contended by Mr. Nanavat that it is neither pleaded nor asserted in the pleadings that the consent granted was conditional in its pleading. Mr. Nanavati submitted that the plaintiff even in the Greek proceedings has admitted that the defendant vessel was purchased by the defendant for USD 2,125,000 and has also neither asserted nor pleaded that the consent was conditional.
25. Mr. Nanavati further contended that the claim of the plaintiff does not fall under Article 1(s) of the Arrest Convention of 1999 as the plaintiff is neither the owner of the vessel to dispute ownership or possession of the ship and the plaintiff having consented to the sale of the defendant vessel is just attempting to create right when none in fact exist.
26. It was contended that the reliance upon the judgment of the Apex Court in Chrisomar Corporation v. MJR Steels Private Ltd. reported in 2017 SCC Online SC 1104 is misplaced. It is contended that even as per the said judgment, Page 20 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER relevant date for determining the ownership of the vessel is the date on which the vessel arrested. Referring to the order dated 04.12.2017, it was contended that the ownership of the defendant vessel was with the defendant and not the erstwhile owners on the date of the arrest. It was further contended that the plaintiff asserts breach of contract against the erstwhile owners to which the defendant is not privy to the contract.
27. Mr. Nanavati submitted that as held by the Apex Court in the case of VSNL v. MV Kapital Kud reported in (1996)7 SCC 127, it is held that the Court should only stay the action on the ground when the hopelessness of the plaintiff's claim is beyond doubt. As against this, relying upon the judgment of the Bombay High Court in the case of Sivabulk Ltd. V. M.V. Aodabao reported in 2016 SCC Online Bom 3539, it was contended by Mr. Nanavati that as held by the Bombay High Court, the test laid down in VSNL (supra) cannot be stretched to the point of absurdity and referring to the same, the Hon'ble Bombay High Court unconditionally vacated the order of arrest. It was therefore contended that the application deserves to be allowed with exemplary cost including the cost of the defendant as a consequence of the arrest of the vessel and the cost of the security furnished by the defendant for its subsequent release.
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28. No other or further submissions have been made by the learned counsel for the parties.
29. Before considering the submissions made by the learned counsels appearing for the parties, the contents as well as averments made in the plaint deserve to be considered.
30. In para 2 of the plaint, it is mentioned that defendant vessel is a Liberian flag, sea going vessel. It is further stated in para 2 that defendant vessel is owned by Nikiforos Shipping S.A. who has fraudulently sold the defendant vessel on which the plaintiff had a charge/hypothecation to one Poseidon Navigation Corp. It is also alleged that Nikiforos Shipping S.A. has sold the vessel to defeat the plaintiff's claim and therefore contended that the sale is null and void as the plaintiff's written consent was prerequisite before the sale which was never given by the plaintiff. As the prerequisites for sale consent mentioned in the settlement agreement were not adhered to by the owners and therefore, it is contended that any change in the ownership cannot defeat the claim of the plaintiff for which the plaintiff has relied upon Equasis report.
31. In para 5 it is again mentioned by the plaintiff that as per the agreement previous written consent of the plaintiff is required. In para 7 of the plaint, it is also mentioned by the Page 22 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER plaintiff that defendant vessel is sold by Nikiforos Shipping S.A. to Poseidon Navigation Corp. by an agreement to sell dated 02.10.2016 and has referred to the email dated 28.11.2016 and 29.11.2016. In paras 10, 11 and 12, the plaintiff has mentioned that Nikiforos Shipping S.A. is the owner of the defendant vessel and as per the precondition of the sale of the defendant vessel, the sale of the defendant vessel is null and void. Again in para 13, the suit filed against Nikiforos Shipping S.A. as well as Poseidon Navigation Corp in June 2017 for recovery of their claim amount before Multimember Court of First Instance at Piraeus is also mentioned. It is the case of the plaintiff that as per the shareholder agreement dated 27.05.2015 and loan agreement of the same date, the plaintiff has a charge or hypothecation on the defendant vessel.
32. As noted hereinabove, the Equasis report which is produced by the plaintiff along with the suit records that Poseidon Navigation Corp. has become registered owner of the defendant vessel w.e.f. 07.12.2016.
33. In the aforesaid set of facts, it would be appropriate to refer to the documents which are brought on record by the defendant in the Civil Application, which are admittedly not produced or even averred by the plaintiff in the suit.
Page 23 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019C/AS/37/2017 IA ORDER The email dated 30.11.2016 is the email
addressed by defendant to the plaintiff as well as the erstwhile owner which is purported in reply to the email dated 29.11.2016, which is referred to by the plaintiff in the suit. In para 3 of the email dated 30.11.2016, the defendant has informed the plaintiff as well that as a consequence of the above, i.e., email dated 29.11.2016 addressed by the plaintiff, the defendant as the buyers for the time shall refrain from proceeding further with the purchase price payment procedure which had already commenced. In para 4 of the said email, it is also mentioned by the defendant that unless they receive within next two hours a written statement from their holding company Satin Finance Ltd., stating explicitly that all consent to the sale of the vessel to the defendant cancelling the message of 29.11.2016 sent by Mr. Odoni of the plaintiff is cancelled and recalled in its entirety, the defendant would not proceed to payment of purchase price keeping their rights open for any legal action. Similarly, it is noteworthy that the erstwhile owner addressed email dated 01.12.2016 to the defendant as well as plaintiff demanding the defendant to comply with the purchase formalities. Similarly, by email dated 05.12.2016, sent at 19:35 hours, by defendant to the erstwhile owner with a copy to the plaintiff requesting the plaintiff to withdraw their Page 24 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER objection to the sale of the defendant vessel. On the same date, i.e. 05.12.2016 at 21:05 hours, the erstwhile owner sent a email to the defendant demanding payment wherein it is specifically mentioned that if they do not receive payment of the vessel within tomorrow, they will be free to exercise all rights which continue to be reserved. The last clinching piece of evidence is the communication through email dated 06.12.2016 at 17:12 hrs. sent by the plaintiff to the defendant and erstwhile owner which reads as under "We refer to our below message Always without prejudice to the rights of the Sellers m/v Nikiforos and to the obligations of Buyers, pursuant to the Agreement dated 2.10.2016, as amended, and pursuant to the relevant request, in so far as you may be concerned, this is to advice you that the below message has been withdrawn."
And below the said message is the email dated 29.11.2016 at 5:15 hrs., Exhibit E of the plaint is mentioned. The aforesaid mail followed on the same day at 18:28 hrs. addressed by the advocate of the plaintiff to the defendant as well as the erstwhile owners which reads under "Further to our below and buyers lawyers request, always without prejudice to Sellers position, pursuant to the Agreement dated 2.10.2016, as amended, and in so far as you may be concerned, we hereby clarify that we consent to the sale of the vessel Page 25 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER Nikiforos pursuant to the said agreement."
Both the emails dated 06.12.2016 were within the knowledge of the plaintiff, however were not produced.
34. As noted hereinabove, the suit is based on the point that the defendant vessel could not have been sold without previous consent of the plaintiff and even if the contentions made in para 4 of the suit is believed to be gospel truth, the fact remains that in para 2 of the suit, it is specifically averred by the plaintiff that written consent was a prerequisite for sale which was never given by the plaintiff which if factually incorrect. The record further indicates that acting upon the express consent given by the plaintiff's advocate, the defendant vessel came to transferred and the ownership was changed and defendant became owner w.e.f. 07.12.2016. It is the case of the plaintiff that the consent which was given on 06.12.2016 was in reference to the agreements between the plaintiff and the erstwhile owner, however, it is specifically mentioned that while giving consent, with the earlier objections raised on 29.11.2016, so far as defendant is concerned, is withdrawn and reference is made to the agreement to sell entered into by the erstwhile owner and defendant on 02.10.2016. Even in the email sent by the learned advocate of the plaintiff, there Page 26 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER is direct reference to the agreement dated 02.10.2016 and no other agreement which have been entered into between the plaintiff and the erstwhile owners and others is mentioned. Though the plaintiff was in knowledge of such facts and even the transfer of ownership, only a cursory statement is found in the plaint whereby it is stated that no consent was given and that sale is null and void, however these five emails have neither been referred to in the plaint nor have been placed on record by the plaintiff, which are vital to the very issue involved in the suit. It is not the case of the plaintiff that anything is due and payable by the defendant, but the claim in the suit is that they have charge or hypothecation over the defendant vessel and on that basis, it is stated that there is a maritime claim and therefore, the present suit is filed in admiralty jurisdiction of this Court and thus, plaintiff has deliberately suppressed the aforesaid material fact and in opinion of this Court, even though the plaintiff was well aware about the consent given by the plaintiff as well as the advocate and even though specifically the message dated 29.11.2016 has been withdrawn in reference to the agreement dated 02.10.2016, the email dated 29.11.2016 is relied upon by the plaintiff and at the same time the aforesaid five important documents have been withheld and having not produced on record, this Court Page 27 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER exercised its admiralty jurisdiction and passed the order of arrest of defendant vessel on 04.12.2017 whereas the defendant became registered owner of the defendant vessel since 07.12.2016 and therefore, on the date of arrest, the erstwhile owner was not the owner of the defendant vessel, but the defendant was the registered owner.
35. Mr. Nanavati has rightly relied upon the judgment of the Apex Court in the case of S.P. Chengalvaraya Naidu (supra) as well as Amar Singh (supra), wherein the Hon'ble Supreme Court has referred to catena of decisions on the aspect and observed thus "53. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts. Courts held that such litigants have come with "unclean hands" and are not entitled to be heard on the merits of their case.
54. In Dalglish v. Jarvie {2 Mac. & G. 231,238}, the Court, speaking through Lord Langdale and Rolfe B., laid down:
"It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any fact which he has omitted to bring forward."
55. In Castelli v. Cook {1849 (7) Hare, Page 28 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER 89,94}, Vice Chancellor Wigram, formulated the same principles as follows:
"A plaintiff applying ex parte comes under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when the other party applies to dissolve the injunction, that any material fact has been suppressed or not property brought forward, the plaintiff is told that the Court will not decide on the merits, and that, as has broken faith with the Court, the injunction must go."
56. In the case of Republic of Peru v. Dreyfus Brothers & Company {55 L.T. 802,803}, Justice Kay reminded us of the same position by holding:
"...If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the importance of dealing in good faith with the Court when ex parte applications are made."
57. In one of the most celebrated cases upholding this principle, in the Court of Appeal in R. v. Kensington Income Tax Commissioner ex p Princess de Polignac K.B. Lord Justice Scrutton formulated as under:
"and it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts facts, now law. He must not misstate the law if he can help it Page 29 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement."
58. It is one of the fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings and especially when it contains a prayer for injunction. A prayer for injunction, which is an equitable remedy, must be governed by principles of `uberrima fide'.
59. The aforesaid requirement of coming to Court with clean hands has been repeatedly reiterated by this Court in a large number of cases. Some of which may be noted, they are: Hari Narain v. Badri Das AIR 1963 SC 1558, Welcome Hotel and others v. State of A.P. and others (1983) 4 SCC 575, G. Narayanaswamy Reddy (Dead) by LRs. and another v. Government of Karnatka and another JT 1991(3) SC 12: (1991) 3 SCC 261, S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. and others JT 1993 (6) SC 331: (1994) 1 SCC 1, A.V. Papayya Sastry and others v. Government of A.P. and others JT 2007 (4) SC 186:
(2007) 4 SCC 221, Prestige Lights Limited v. SBI JT 2007(10) SC 218: (2007) 8 SCC 449, Sunil Poddar and others v. Union Bank of India JT 2008(1) SC 308: (2008) 2 SCC 326, K.D.Sharma v. SAIL and others JT 2008 (8) SC 57: (2008) 12 SCC 481, G. Jayashree and others v. Bhagwandas S. Patel and others JT 2009(2) SC 71 : (2009) 3 SCC 141, Dalip Singh v. State of U.P. and others JT 2009 (15) SC 201: (2010) 2 SCC
114. Page 30 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019
C/AS/37/2017 IA ORDER
60. In the last noted case of Dalip Singh (supra), this Court has given this concept a new dimension which has a far reaching effect. We, therefore, repeat those principles here again:
"1. For many centuries Indian society cherished two basic values of life i.e. "satya"(truth) and "ahimsa (non violence), Mahavir, Gautam Budha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justicedelivery system which was in vogue in the pre independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, postIndependence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
However, this Court is constrained to observe that those principles are Page 31 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER honoured more in breach than in their observance."
36. This Court is of the opinion that even though the plaintiff was aware about all the aforesaid emails and more particularly two emails dated 06.12.2016, they have not fully disclosed the facts before this Court and thus, in opinion of this Court, the have suppressed the material facts. The argument raised by the learned counsel appearing for the plaintiff that the said aspect even as per the ratio laid down by the Apex Court in the case of Amar Singh (supra) and S.P. Chengalvaraya Naidu (supra) cannot be looked into at this stage as it requires full fledged trial in facts of this case, ex facie there is no disclosure of the material fact and therefore, the said contention deserves to be negatived and as such therefore, there is suppression of material fact.
37. As decided the the Apex Court in the case of Chrisomar Corporation (supra), it is materially to be considered that who was the owner of the defendant vessel on the date of arrest. In the facts of this case, the defendant was the owner of the vessel on the date of the arrest order and unilateral statement made in the plaint that the sale is bad and illegal and making a statement that no consent was given even though specific consent was given, there is nothing on record even further to suggest that the consent Page 32 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER given by the emails dated 06.12.2016 by the plaintiff as well as the advocate of the plaintiff separately have been withdrawn at any time by the plaintiff.
38. As far as shareholders agreement dated 27.05.2015 as well as loan agreement dated 27.05.2015 and settlement agreement dated 06.12.2016, the defendant was not a party to the agreement. The agreement dated 06.12.2016 is a private settlement and release agreement between erstwhile owner and Nikiforos Shipping S.A. and the plaintiff and defendant was neither a party nor even indirectly having any privity of contract which is more in form of a commercial understanding between plaintiff and erstwhile owners. The two covenants of the said agreement are noteworthy "2. Zatrix or its nominee (to be nominated in writing) to receive USD 323,000 out of the sale proceeds of the Nikiforos, such payment to be effected by execution from Nikiforos Shipping S.A. of an irrevocable payment instruction/letter to Eurobank Ergasias for the latter to make such remittance out of the sale proceeds of the Nikiforos (after firstly the said bank has received full repayment of the loan and has paid to V & P Law Firm the USD equivalent of Euro 90,000).
14. At and from the time of fulfillment of clauses 1 and 2 above, the transfer of the 35% shares of Daucina Marine S.A. from GS and AN to Guentel per the first sentence of 3 above, and clause 4 above, all the Page 33 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER following claims, matters and issues shall be automatically fully, finally and irrevocably settled and Zatrix Limited, Mr. Rodolfo Odoni and/or their respective principals, shareholders/coshareholders, directors, associated companies, nominees, employees, servants and agents shall not have nor maintain any claim whatsoever in relation thereto:
For the avoidance of doubt, such settlement includes, but without limitation, any mater concerning management accounts and/or expenditures of any kind (the parties having considered and accepted all such accounts unreservedly and irrevocably), any alleged nonknowledge of the bareboat charter of Nikiforos dated 28.01.2016 and/or of the private agreement for, among others, the sale of the m/v Nikiforos dated 02.10.2016, both as amended from time to time and/or the financial statements and other actions of all the companies and persons stated hereinabove."
39. Thus, by the private settlement and release agreement dated 06.12.2016, the plaintiff and the erstwhile owners agreed for certain duties to be performed mutually as per the covenant no.2., as observed hereinabove, the plaintiff or its nominee to be nominated in writing was to receive USD 323,000 out of the sale proceedings of NIKIFOROS, i.e., defendant vessel for which the erstwhile owner Nikiforos Shipping S.A. was to execute irrevocable payment instruction/letter to Eurobank Ergasias, i.e., the concerned bank, with the other conditions which are mentioned in clause 2. Therefore, on 06.12.2016, when the agreement was entered into, Page 34 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER the plaintiff was well aware about the sale of the defendant vessel which has direct co relation to the letter of consent dated 06.12.2016 addressed by the plaintiff and additionally by the advocate for the plaintiff and as stated in para 11 of the plaint, there is alleged breach by the erstwhile owner. However, there is nothing on record to suggest either to the letter of consent dated 06.12.2016 that the sale was conditional. It is a matter of record that the plaintiff has already filed a suit for recovery of the amount in the Court of Piraeus as mentioned in para 13 of the plaint which also shows that there is alleged breach of agreement dated 06.12.2016 by the erstwhile owner.
However, the fact remains that there is no privity of contract between the plaintiff and defendant for enforcement of the same. If at all there is any breach by the erstwhile owners, the same does not create any right in the defendant vessel and the defendant cannot be made liable for the alleged breach of the erstwhile owner once having given consent. All the three documents which are relied upon in the plaint would not create any charge or hypothecation of the defendant vessel. This Court in the case of Western Ship Breaking Industry (supra) after referring to the judgment of the Apex Court in the case of Epoch Enterrepots (supra) has observed thus Page 35 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER "16. In the matter of Epoch Enterrepots v. M.V. Won Fu, reported in AIR 2003 SC 24 [para16],the Apex Court has observed as under:
16. In M.V. Al Quamar (supra) this Court spoke of two attributes of maritime lien as noticed hereinbefore. The International Convention for Unification of Certain Rules relating to Maritime Lines and Mortgages at Brussels in 1967 defined the maritime line to be as below:
a. 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; b. port, canal and other waterways and pilotage dues;
c. claims against the owner in respect of loss of life or personal injury occurring, whether on land or no water. In direct connection with the operation of the vessel;
d. claims against the owner based on tort and not capable of being based on contract, in respect of loss of or damage to property occurring, whether on land or no water in direct connection with the operation of the vessel;
e. claims for salvage, wreck removal and contribution in general average. It would be clear from the judgment of Apex Court that charge of mortgage is not a maritime line/claim. In my opinion, the said charge even would not stand at par with the maritime claim or lien.
17. An order of arrest is akin to an order of injunction. An injunction can be granted to a party if it shows prima facie case, convinces the Court that balance of convenience is in favour of the party and if injunction prayed for is not granted, Page 36 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER then, the plaintiff would suffer irreparable injury, which cannot be compensated in terms of money. Over and above these principles, the Court would also have to see that whether on the facts and in the circumstances of the case and looking to the conduct of the party, injunction deserves to be granted or not. Injunction is a relief in equity and while granting injunction, Court has to place itself in place of the plaintiff for grant of injunction and in place of the defendant for vacating the same. The Court simply cannot grant or reject injunction for the sake of argument. The Court is obliged to consider pros and cons, conduct of the parties and injury likely to be caused by refusal or by grant of the injunction.
18. In case of a maritime claim/lien, law is plain and simple. Almost every High Court in its Admiralty and Vice Admiralty jurisdiction are issuing orders of arrest, if facts projected by the plaintiff prima facie convince the Court that the case on hands is fit one for grant of order of arrest. It is also not unknown to our judicial system that orders of arrest can be vacated by the Court if it is found that the order of arrest has been obtained by playing fraud by foul game or by suppressing the material facts.
19. In a case, where the plaintiff does not come with clean hands before the Court, the Court can refuse interim relief. In a case where, plaintiff convinces the Court that it has done everything which it could do, and has not played any fraud, then, the Court, obviously would grant order of arrest and after hearing both the sides, would always confirm it. The question to be answered would always depend on the facts of the case."
40. Thus, there is no maritime claim of the Page 37 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER plaintiff over the defendant vessel. Firstly, the defendant became owner of the defendant vessel on 07.12.2016 and it is also not the case of the plaintiff that the defendant has not paid sale price to the erstwhile owner to the tune of USD 323,000 and only because there is some failure on part of erstwhile owners as per agreement between themselves, it cannot be said that the plaintiff has maritime claim or lien over the defendant vessel even as per Article Article 1 (v) of 1999 convention. The contention raised by the plaintiff that plaintiff has hypothecation which has priority of payment is also without any basis and the same deserves to be negatived. Even at the cost of repetition, it deserves to be noted that whole suit is based on the premise that there is no consent ever given by the plaintiff. Whereas by email dated 06.12.2016, the plaintiff as well as its advocate has specifically given consent referring to the agreement to sell dated 02.10.2016 and has specifically withdrawn the objection raised by the plaintiff dated 29.11.2016. It also deserves to be noted that on the date on which the consent was given, the private settlement agreement was entered into between the plaintiff and the erstwhile owner wherein also there is a mention of sale of defendant vessel for the price of USD 323,000. However, in the suit, only a cursory statement is made that the sale is null and void by Page 38 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER suppressing the fact of consent and on the contrary, a positive statement is made in para 2 of the plaint that 'no consent is given' and in the suit it is maintained as if, the erstwhile owner is a registered owner on the date of the arrest and such suppression has led this Court to believe that in absence of consent, the sale is incomplete and that the erstwhile owner still remains the owner of the defendant vessel, which would lead to the result that there exist some maritime claim of the plaintiff whereas in reality, defendant has made payment on 06.12.2016 and the defendant became owner of the defendant vessel on 07.12.2016.
41. It is also worthwhile to note that the plaintiff addressed email dated 14.03.2017 to the erstwhile owner terminating the settlement agreement dated 06.12.2016 exhibit 4 to the plaint, however, the fact remains that the defendant is not party to the agreement and therefore, no privity of contract. It also further deserves to be noted that though this Court is not called upon to decide the issue involved in the email dated 14.03.2017, as it has some bearing on the sale of the defendant vessel, it deserves to be noted that even in the notice of withdrawal sent by the plaintiff through email dated 14.03.2017 to the erstwhile owner, speaks of breach of clause 4 of the settlement agreement. It is silent on the aspect Page 39 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER as provided in clause 2 of the said agreement as discussed hereinabove.
42. Consequently therefore, considering the submissions made by the learned counsels appearing for the parties and considering the ratio laid down by the judgments which are relied upon by both the sides, this Court is of the opinion that the plaintiff has suppressed material fact and more particularly the aspect of express consent given by the plaintiff on 06.12.2016 withdrawing objection raised vide email dated 29.11.2016 as well as the consent given by his advocate. There is nothing on record to show that such consent has ever been withdrawn by the plaintiff and therefore, on the said ground, the order of arrest as well as the further of deposit deserves to be modified. Having come to the conclusion that the sale of the defendant vessel is after the consent given by the plaintiff and in absence of any document to even remotely show that there was hypothecation in favour of the plaintiff and the defendant became the owner of the defendant vessel on 07.12.2016, i.e., on the date of order of arrest, the defendant was the owner and not the erstwhile owner as portrayed in the plaint, the defendant cannot be made liable for breach of settlement agreement dated 06.12.2016 and there is no privity of contract between the defendant and the plaintiff and resultantly, in Page 40 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019 C/AS/37/2017 IA ORDER opinion of this Court, no maritime claim exist.
43. The application deserves to be allowed partly.
The amount of deposit made by the defendant pursuant to the orders of arrest dated 04.12.2017 read with further order dated 15.12.2017 whereby the defendant has deposited an amount of Rs. 3,41,44,852/ with the Registry of this Court, is directed to be returned to the applicantdefendant and the order of arrest dated 04.12.2017 is set aside. Rest of the prayers are not dealt with as the said aspects are not even argued by either side. The application is disposed of accordingly. However, in facts of this application parties to bear their own costs.
(R.M.CHHAYA, J.) FURTHER ORDER After the order was pronounced, request for stay was made to enable the plaintiffopponent to approach the higher forum. In facts and circumstances of the same, the same deserves to be granted to enable the opponentplaintiff to approach the higher forum. Hence, this order is stayed for a period of four weeks from today.
(R.M.CHHAYA, J) bjoy Page 41 of 41 Downloaded on : Thu Aug 29 00:06:02 IST 2019