Bombay High Court
The Board Of Mumbai Port Authority vs Sale Proceeds Of Vessel Uv Kamrup on 12 January, 2024
Author: R.I. Chagla
Bench: R.I. Chagla
2024:BHC-OS:831
This Order is modified/corrected by Speaking to Minutes Order dated 23/01/2024
20-IA(L) 17206.2023 in COMAS 16.2022.doc
Kavita S.J.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (L) NO.17206 OF 2023
IN
COMMERCIAL ADMIRALTY SUIT NO.16 OF 2022
The Board of Mumbai Port Authority ...Applicant/
Original Plaintiff
Versus
Sale Proceeds of the Vessel ...Defendant
U.V. Kamrup (IMO No. 8218108)
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Mr. Ajai Fernandes a/w Mrs. Nina Motiwalla & Ms. Janhavi Kandekar
i/b Motiwalla & Co., Advocates for the Plaintiffs.
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CORAM : R.I. CHAGLA, J.
DATE : 12TH JANUARY, 2024.
ORDER :
1. By this Interim Application, the Applicant/Original Plaintiff has sought a Summary Judgment / Decree in the above Commercial Admiralty Suit in favour of the Applicant and against the Defendant in the sum of Rs.11,02,796/- (Rupees Eleven Lakh Two Thousand KAVITA Seven Hundred and Ninety Six only) together with interest @ 15% SUSHIL JADHAV Digitally signed by KAVITA SUSHIL JADHAV per annum on the sum of Rs.7,63,670.34 (Rupees Seven Lakh Sixty Date: 2024.01.16 18:53:07 +0530 1/9 ::: Uploaded on - 16/01/2024 ::: Downloaded on - 30/01/2024 16:58:54 ::: This Order is modified/corrected by Speaking to Minutes Order dated 23/01/2024 20-IA(L) 17206.2023 in COMAS 16.2022.doc Three Thousand Six Hundred Seventy and Thirty Four Paise only) from 11th September, 2021 till payment and / or realization.
2. The Applicant/Original Plaintiff is the owner of the Docks and Harbour and Port facilities at the Port of Mumbai. As owner the Applicant/Original Plaintiff renders various services to the Vessels coming to the Port of Mumbai and the Vessels use various Port facilities provided by the Applicant/Original Plaintiff. The Vessel U.V. Kamrup ("the said Vessel") had made use of the Applicant/Original Plaintiff's facilities and services such as Pilotage, Anchorage and monthly License Fees at Bunders etc. for which the Marine and the Traffic Departments of the Applicant/Original Plaintiff has raised its Bills / Statement of Outstanding.
3. The Applicant/Original Plaintiff has stated that the said Vessel prior to its sale was owned by M/s Dolphin Offshore Shipping Ltd., which was arrested by this Court vide an order dated 27 th July, 2020 in Commercial Admiralty Suit (L) 6656 of 2020 and ultimately sold by this Court vide order dated 6th April, 2021 for a sum of Rs.92,50,000/- to M/s Bansal Ship Breakers. There are Bills which had been raised by the Applicant/Original Plaintiff on M/s Dolphin Offshore Shipping Ltd., the erstwhile Owners, Master and Agents of 2/9 ::: Uploaded on - 16/01/2024 ::: Downloaded on - 30/01/2024 16:58:54 ::: This Order is modified/corrected by Speaking to Minutes Order dated 23/01/2024 20-IA(L) 17206.2023 in COMAS 16.2022.doc the said Vessel. However, despite raising the said Bills and and issuance of following Notices under Form I and II under Section 64 of the Major Port Trust Act, 1963, the owners of the said Vessel had failed and neglected to make payment of the statutory dues to the Applicant/Original Plaintiff. The Applicant/Original Plaintiff has stated that the statutory and maritime lien against the said Vessel has now been transferred to the sale proceeds of the said Vessel. The statutory dues of the Applicant/Original Plaintiff's Marine Department alongwith interest works out to Rs.84,409/- which has been set out in the tabular form in Paragraph 6 of the Interim Application. The Applicant/Original Plaintiff states that it is entitled for the interest on the said bills as per the applicable Scale of Rates (SOR) from 1st September, 2021.
4. The Applicant/Original Plaintiff has further stated that when the said Vessel came into the Port and Harbour of Mumbai on 29th May, 2018 it was anchored at PVC Anchorage. On 13 th August, 2019 and thereafter the said Vessel shifted from PVC anchorage to Coal Bunder. However, the Plaintiff's Marine Department was under
the impression that the Vessel was still lying at the PVC Anchorage. Hence, they kept on raising Bills for Anchorage Charges. However, in 3/9 ::: Uploaded on - 16/01/2024 ::: Downloaded on - 30/01/2024 16:58:54 ::: This Order is modified/corrected by Speaking to Minutes Order dated 23/01/2024 20-IA(L) 17206.2023 in COMAS 16.2022.doc June, 2021 on checking the records, the Plaintiff noticed that the said Vessel was at PVC Anchorage only upto 13th August, 2019 and thereafter the same was shifted to Bunder's area which falls within the jurisdiction of the Traffic Department (Bunders). The Applicant/ Original Plaintiff has stated that the said Vessel was again shifted from Coal Bunder to Anchorage on 1st April, 2021 and it remained there till 9th April, 2021. The Applicant/Original Plaintiff's Marine Department has given credit for the said period the Vessel was not at Anchorage point.
5. The Bill bearing No.1920M2319882 (DN-2872) dated 7 th August, 2019 for Rs.44,067/- is annexed at Exhibit-A to the present Interim Application. Further, annexed at Exhibit-B to the present Interim Application is the copy of the Bill bearing No.2021M2369834 (DN-437) dated 8th August, 2020 for Rs.6,44,465/-. The Applicant/Original Plaintiff's Marine Department has issued Credit Note for Rs.6,36,541/- on the aforesaid bill. Hence, the balance due against the aforesaid bill is Rs.7,924/-. Further, annexed at Exhibit- B1 to the present Interim Application is a copy of the Credit Note / Amended Bill No.2021M2369834 (DN-437) dated 8th August, 2020 for Rs.6,36,541/-. Further, annexed at Exhibit-B2 to the Interim 4/9 ::: Uploaded on - 16/01/2024 ::: Downloaded on - 30/01/2024 16:58:54 ::: This Order is modified/corrected by Speaking to Minutes Order dated 23/01/2024 20-IA(L) 17206.2023 in COMAS 16.2022.doc Application is a working / calculation of the aforesaid Bill dated 8 th August, 2020. Annexed at Exhibit-C is the copy of the Bill bearing No.21222M2420084 (DN-300) dated 11th June, 2021 for Rs.1,25,137/-. The Applicant/Original Plaintiff's Marine Department has issued Credit Note for a sum of Rs.1,10,904/- on the aforesaid Bill. Hence, balance due against the aforesaid Bill is Rs.14,233/-. Further, annexed at Exhibit-C1 is a copy of Credit Note/Bill bearing No.21222M2420084 (DN-300) dated 11th June, 2021 for Rs.14,233/-. Annexed at Exhibit-C2 is a working / calculation of the aforesaid Bill dated 11th June, 2021.
6. The Applicant/Original Plaintiff has stated that the working / calculation of the aforesaid Bills are based on the SOR which have the force of law. The SORs applicable to the aforesaid bills have been annexed at Exhibits G-1 to G-5 to the Plaint i.e. dated 1 st May, 2017, 10th August, 2018, 1st May, 2019, 3rd October, 2019 and 20th July, 2016 respectively.
7. The Applicant/Original Plaintiff has further stated that apart from the above, the Marine Department had issued Bill bearing No.2021M2392381 (DN-1210) dated 12th January, 2021 for Rs.3,35,836/- and Bill bearing No.2021M2398012 (DN-1408) dated 5/9 ::: Uploaded on - 16/01/2024 ::: Downloaded on - 30/01/2024 16:58:54 ::: This Order is modified/corrected by Speaking to Minutes Order dated 23/01/2024 20-IA(L) 17206.2023 in COMAS 16.2022.doc 10th February, 2021 for Rs.85,564/- on the said Vessel. The Marine Department has given full credit on the aforesaid two Bills to the said Vessel/erstwhile owner as the said Vessel was not a anchorage point.
8. The Applicant/Original Plaintiff has stated that apart from the dues of the Marine Department, the said Vessel is also liable to pay to the Traffic Department (Bunders) of the Applicant/Plaintiff a sum of Rs.10,18,386.86 towards monthly License Fees for the period from 1st August, 2019 to 31st March, 2021. The said amount includes GST and interest. The Traffic Department (Bunders) levies License Fees on monthly basis. The Applicant/Original Plaintiff has stated that they are entitled to interest on the aforesaid Bills as per the applicable SOR from 1st September, 2021. Annexed at Exhibit-D is copy of Bill/Statement/Working Sheet of outstanding monthly License Fees. Annexed at Exhibit-D1 is working / calculation of the aforesaid Bill/Statement/Working Sheet.
9. The Applicant/Original Plaintiff has stated that in view of the Owners, Master and Agents having failed to pay the statutory dues to the Applicant/Original Plaintiff, the Applicant/Original Plainitff issued Notice under Form No.1 under the provisions of Section 64 of the Major Port Trusts Act, 1963 on the Master of the 6/9 ::: Uploaded on - 16/01/2024 ::: Downloaded on - 30/01/2024 16:58:54 ::: This Order is modified/corrected by Speaking to Minutes Order dated 23/01/2024 20-IA(L) 17206.2023 in COMAS 16.2022.doc said Vessel on 20th August, 2020 calling upon them to pay the dues mentioned therein within a period of 7 days failing which the Applicant/Original Plaintiff pointed out that the said Vessel will be distrained under the provisions of Section 64 of the Major Port Trust, 1963.
10. The Applicant/Original Plaintiff has further stated that despite the aforementioned Notice the Owners / Master and Agents of the said Vessel have failed and neglected to pay the statutory dues in respect of the said Vessel to the Applicant. In view thereof, the Applicant issued Notice dated 7th September, 2020 under Form No.II on them and destraint the said Vessel under the provisions of Section 64 of the Major Port Trust Act, 1963.
11. The learned Counsel for the Applicant/Original Plaintiff has stated that there is no vakalatnama filed on behalf of the Defendant. The Applicant/Plaintiff has sought to serve on the owner of the Vessel. However, the envelope was returned with remark "left". The Prothonoary and Senior Master of this Court with whom sale proceeds are lying has been served with the Notice of the present Interim Application.
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This Order is modified/corrected by Speaking to Minutes Order dated 23/01/2024 20-IA(L) 17206.2023 in COMAS 16.2022.doc
12. Having considered the averments in the present Interim Application as well as considering the fact that there is no denial of the Applicant/Original Plaintiff's claim by the Defendant, it can be concluded that there is no objection to the payment of Bills and Notices sent by the Applicant/Original Plaintiff to the Owners / Masters and Agents of the said Vessel. The sale proceeds in respect of the said Vessel are presently lying with Prothonotary and Senior Master of this Court. There is a maritime lien of the Applicant/Plaintiff against the said Vessel which has now been transferred to the sale proceeds of the said Vessel. I am satisfied that the Defendant is liable to pay in addition to the claim of the Applicant/Plaintiff in the present Suit, interest @ 15% per annum levied as per Clause v(a) of Section 1.2 General Terms and Conditions of the SORs. One of the SOR is dated 3 rd October, 2019 and the said Clause thereof reads as under:
"(a) The user shall pay penal interest on delayed payments and Port shall pay juxtaposed penal interest on delayed refunds at the rate of 15% per annum."
13. Accordingly, the Suit is disposed of and decreed in terms of the prayer Clause 'a' of the Interim Application which reads thus: 8/9 ::: Uploaded on - 16/01/2024 ::: Downloaded on - 30/01/2024 16:58:54 :::
This Order is modified/corrected by Speaking to Minutes Order dated 23/01/2024 20-IA(L) 17206.2023 in COMAS 16.2022.doc "(a) That this Hon'ble Court be pleased to pass a Summary Judgment / Decree in favour of the Applicants and against the Defendant in the sum of Rs.11,02,796/-
(Rupees Eleven Lakh Two Thousand Seven Hundred and Ninety Six only) together with interest at the rate of 15% per annum on the sum of Rs.7,63,670.34 (Rupees Seven Lakh Sixty Three Thousand Six Hundred Seventy and Thirty Four Paise only) from 01/09//2021 till payment and / or realization."
14. The Prothonotary and Senior Master of this Court shall act upon the Decree and release the sum of Rs.11,02,796/- (Rupees Eleven Lakh Two Thousand Seven Hundred and Ninety Six only) together with the interest at the rate of 15% per annum on the sum of Rs.7,63,670.34 (Rupees Seven Lakh Sixty Three Thousand Six Hundred Seventy and Thirty Four Paise only) within a period of three weeks from today.
15. The present Interim application is accordingly disposed of.
[R.I. CHAGLA, J.] 9/9 ::: Uploaded on - 16/01/2024 ::: Downloaded on - 30/01/2024 16:58:54 :::