Bombay High Court
Osv Crest Mercury 1 (Imo 9724398) vs Vision Projects Technologies Pvt Ltd on 27 March, 2023
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
2023:BHC-OS:1924
3.ial.7485.23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (L) NO. 7485 OF 2023
IN
COMMERCIAL ADMIRALTY SUIT NO.47 OF 2022
O.S.V. Crest Mercury One (IMO 9724398) ..Applicant
(Original Defendant)
In the matter of:
Vision Projects Technologies Private Limited ..Plaintiff
Versus
O.S.V. Crest Mercury One (IMO 9724398) ..Defendant
Mr.Ashwin Shanker a/w Mr. Kunal Naik and Mr. Rishi
Murarka, Advocates for the Applicant/ Defendant.
Ms.Priyanka Patel, Advocate for the Respondent in I.A. /
Orig.Plaintiff.
CORAM : B. P. COLABAWALLA, J
DATE : MARCH 27, 2023
P. C.
1. The present Application has been filed by the Applicant/ Defendant Vessel praying for an Order for shifting of the Applicant/ Defendant Vessel under arrest from the port and Harbor of Mumbai to Page 1 of 7 MARCH 27, 2023 Aswale ::: Uploaded on - 28/03/2023 ::: Downloaded on - 28/03/2023 16:41:52 :::
3.ial.7485.23.doc Kathale Shipyard Jetty, Lavgan, Maharashtra i.e., within this Court's jurisdiction, for carrying out maintenance and lay up class surveys.
2. The Applicant/Defendant Vessel has filed a Further Affidavit in Support of its Application dated 23 rd March 2023 placing before this Court the insurance policies/cover of the Applicant/ Defendant Vessel. The Respondent / Plaintiff has filed its Affidavit in Reply dated 23rd March 2023 and the Applicant/Defendant Vessel has filed its Affidavit in Rejoinder dated 24 th March 2023 to the Respondent's Affidavit in Reply dated 23rd March 2023.
3. During the course of hearing Mr. Kamat, the learned Counsel appearing on behalf of the Plaintiff expressed his apprehension that one of the reasons for opposing the present Application i.e. the Vessel during its journey from Mumbai Port to Kathale Shipyard Jetty, Lavgan, Maharashtra and back, if the vessel encounters any incident, the same would put the Security of the Plaintiff at peril. He also submitted that the Plaintiff is in the process of preferring an Application for Sale. It is a known fact that bidders prefer the Mumbai Port for inspection, apart from the convenience of the bidders, even the valuer Page 2 of 7 MARCH 27, 2023 Aswale ::: Uploaded on - 28/03/2023 ::: Downloaded on - 28/03/2023 16:41:52 :::
3.ial.7485.23.doc would find the Mumbai Port convenient for appraising the vessel etc. He submitted that for bidders also to inspect they would have to go to Ratnagiri District should she be allowed to sail to Kathale Shipyard Jetty, Lavgan, Maharashtra under arrest. He submitted that assuming the Court was inclined to allow the vessel to sail under arrest for the purposes of carrying out class survey, maintenance and lay up surveys an undertaking be taken from the Plaintiff that should the vessel encounter any incident which would partially or fully damage the vessel, the registered owner of the vessel should furnish the entire security as claimed in the Suit in this Court. He also submitted that the owner of the vessel should also undertake to bring back the vessel immediately after survey or at such time that the vessel is required to be appraised or inspected as may be directed by this Court.
4. Mr. Shanker, the learned Advocate appearing on behalf of the Defendant vessel as well as its owner on instructions of the owner submits an undertaking to this Court that should the vessel suffer total loss and / or any substantial damage during its journey from Mumbai to Kathale Shipyard Jetty, Lavgan, Maharashtra and back and in the event her Hull and Machinery Underwriters decline the cover, the owner of Page 3 of 7 MARCH 27, 2023 Aswale ::: Uploaded on - 28/03/2023 ::: Downloaded on - 28/03/2023 16:41:52 :::
3.ial.7485.23.doc the vessel shall unconditionally undertake to furnish security for the Plaintiff's claim as on the date of arrest with interest as claimed within a period of 2 weeks. He also undertakes on behalf of the Defendant vessel to bring back the vessel within 9 days from the day the Court so directs. He submits that the vessel will be in cold layup and it would take around 7 days for the vessel to become operational for the purposes of sailing and would need 2 days to cover the journey from Kathale Shipyard Jetty, Lavgan, Maharashtra to Mumbai Port.
5. Keeping in mind the contentions of the parties and to balance equities, I am inclined to allow the vessel to sail under arrest from Mumbai Port to Kathale Shipyard Jetty, Lavgan, Maharashtra on the following terms and conditions:
a. The vessel shall sail under arrest from Mumbai Port to Kathale Shipyard Jetty, Lavgan, Maharashtra for carrying out the class survey, maintenance and lay up survey; b. This Court records an unconditional undertaking of the Director Mr. Pang Wei Meng of the owners of the Defendant Vessel i.e. Continental Radiance Offshore Private Limited that Page 4 of 7 MARCH 27, 2023 Aswale ::: Uploaded on - 28/03/2023 ::: Downloaded on - 28/03/2023 16:41:52 :::
3.ial.7485.23.doc during the voyage of the Defendant vessel from Mumbai Port to Kathale Shipyard Jetty, Lavgan, Maharashtra and back if the vessel encounters a total loss and / or any substantial damage, the owners of the Defendant vessel would furnish the security for the entire amount as claimed in the Suit with interest within a period of 2 weeks thereof, in the event her Hull and Machinery Underwriters decline the cover.
c. The undertaking of Mr. Pang Wei Meng the Director of the owners of the Defendant vessel is also recorded that the vessel would be brought back within 9 days of such time that this Court so orders;
d. The owners of the Defendant vessel agree that as and when the vessel is necessary for carrying out appraisement or inspection in aid of sale of the vessel, the owner of the Defendant vessel would not obstruct and would bring the vessel back to Mumbai Port within 9 days of such an order of this Court;
e. A scanned copy of the Undertaking of Mr. Pang Wei Meng the Director of the owners of the Defendant vessel is filed in Court Page 5 of 7 MARCH 27, 2023 Aswale ::: Uploaded on - 28/03/2023 ::: Downloaded on - 28/03/2023 16:41:52 :::
3.ial.7485.23.doc today and the same has been taken on record and marked as 'X' for identification. This scanned copy is not notarized. The Applicants are hereby directed to file the original notarized Undertaking in this Court within one week from today and the same shall be taken on record and marked as 'X-1' for identification.
f. Mr. Shanker's statement is noted that the port dues qua the Defendant Vessel required to be paid prior to the sailing of the Defendant Vessel, the owners of the Defendant vessel shall secure or pay the same and this order shall not be construed as a direction to the Port or an admission of liability for such dues on behalf of the Defendant Vessel. This statement is made without prejudice to the Defendant Vessel's rights and contention with respect to claiming the same from the Plaintiff in the arbitration/ these proceedings; g. All authorities are to be informed that the vessel continues to be under arrest even during sailing and that it does not have permission to ply outside the territorial waters of this Court. Page 6 of 7
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3.ial.7485.23.doc h. Kathale Shipyard Jetty, Lavgan, Maharashtra is informed and directed that the Applicant Vessel is under the orders of arrest of this Court and the Kathale Shipyard Jetty, Lavgan, Maharashtra shall not permit the movement and / or sailing of the Applicant vessel beyond the territorial waters of this Court without obtaining prior permissions of this Court.
6. With the above directions, the present Interim Application is disposed off.
7. This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
[ B. P. COLABAWALLA, J ].
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