Bombay High Court
Dhirajlal Gorakhnathshingade ... vs Gac Shipping (India) Pvt. Ltd. And Anr on 17 February, 2021
Author: K.R.Shriram
Bench: K.R.Shriram
1/4 39.IAL-4201-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ADMIRALTY AND VICE ADMIRALTY JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (L) NO.4201 OF 2021
IN
COMMERCIAL ADMIRALTY SUIT (L) NO.6807 OF 2020
Dhirajlal Gorakhnath Shingade ....Applicant
IN THE MATTER BETWEEN :
GAC Shipping (India) Pvt. Ltd. ....Plaintiff
V/s.
M.V. Golden Pride ....Defendant
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Mr. Rishi Murarka for applicant.
Mr. Bimal Rajasekhar for plaintiff.
Mr. Kunal Gaikwad for defendant.
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CORAM : K.R.SHRIRAM, J.
DATED : 17th FEBRUARY 2021 P.C. :
1 Mr. Murarka is seeking payment of applicant's wages for the services allegedly rendered on board defendant vessel relying upon Rule 1084 of the Bombay High Court Admiralty Rules. Applicant admittedly has not even filed an admiralty suit.
2 Mr. Murarka to buttress his claim in the interim application relies upon three unreported orders passed by this Court. Firstly in Notice of Motion (L) No.1071 of 2015 in Admiralty Suit (L) No.257 of 2015, order dated 5th May 2015. This order was passed on an application made for auctioning the arrested vessel. The Court in its order directed that if any claimant makes payment of any maintenance or preservation expenses that may become essential and necessary for the Defendant vessel during the Gauri Gaekwad 2/4 39.IAL-4201-2021.doc pendency of the sale process, such claimant shall be entitled to recover the same as Sheriff's expenses. These directions came to be passed after the Court had fixed the schedule of auction. It was also clarified by the Court that if any such claimant is inclined to make payment, it shall inform the Sheriff of Mumbai and other claimant within 3 days of receipt of such communication from the Sheriff. If any claimant has any objection to such payment being treated as as Sheriff's expenses, such claimant shall inform the Sheriff of Mumbai within a same period of 3 days and that the Sheriff of Mumbai shall forthwith apply to this Court for suitable directions. In the instant case, the facts are totally different. Here a crew member allegedly on board is claiming his salary and that too without filing an independent suit.
Second is an order dated 30th April 2020 passed in Sheriff's Report No.15 of 2020 in Judge's Order No.18 of 2020 in Commercial Admiralty Suit (L) No.7 of 2020. This order also is not at all supportive to the prayer of Mr. Murarka since that order was passed on Sheriff's Report.
Third is an order dated 5th November 2020 passed in Interim Application (L) No.5169 of 2020 in Commercial Admiralty Suit (L) No.5166 of 2020 is also totally different from the facts of the case at hand. In the order cited, the application was made basically for repatriation of applicants/plaintiffs. Prayer (f) of the said reads as "that the wages of applicant nos.1, 2, 3, 4, 6, 7, 8, 9, 10,11, 15, 17, 18, 19, 20, 23, 25, 34, 35, 37, 39, 40, 42/original plaintiff nos.1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 15, 17, 18, 19, 20, 23, 25, 34, 37, 39, 40, 42 as sea going safe manning crew on Gauri Gaekwad 3/4 39.IAL-4201-2021.doc board the defendant vessels, for the period between filing the present interim application till their final repatriation be treated as Sheriff's expenses and paid out first as priority from the sale proceeds of the defendant vessel". There the crew members were plaintiffs in the suit. In the instant case, applicant crew member has not even filed a suit. 3 If we entertain such applications, the problem will be (a) it will not be possible to ascertain whether applicant really worked on board the vessel, (b) what was he doing on board the vessel, (c) what were the terms and conditions based on which he was on board the vessel and (d) if it was a huge vessel with 50 crew members, would the Court direct the Sheriff to pay the wages of all the crew members until the vessel is sold? Only such crew, who are required to remain on board as per the safe manning rules, are required to stay on board. There could be a situation where the vessel will not be sold for various reasons for months together. The reason could be that it was unable to fetch a proper price or some applications were taken out by various parties. Does that mean the Court should direct Sheriff to pay the wages of all the crew members for the entire duration of their stay on the vessel as Sheriff's expenses or treat it as Sheriff's expenses. 4 Rule 1084 is not applicable here because under Rule 1084 the Sheriff has to make out a report and seek permission of the Court to incur expenses and the Court, after hearing the parties, may direct payment of such sums as the Court may deem fit, which shall be treated as Sheriff's expenses. Invariably in all cases, it is plaintiff who is told to put the Sheriff Gauri Gaekwad 4/4 39.IAL-4201-2021.doc in funds for meeting these expenses. The Sheriff has to take prior sanction before incurring cost. In a case where a small necessary supplier and that too an unsecured creditor moves the Court and obtains an order of arrest and the owner does not come forward to furnish security and vessel remains under arrest for long period of time, plaintiff cannot be directed to put the Sheriff in funds to pay the wages of the crew members. These are various issues which are required to be kept in mind before passing any order under Rule 1084. Rule 1084 is clearly not applicable to this application. 5 Interim application stands dismissed.
6 If applicant is advised, he may file an admiralty suit and pray for appropriate reliefs.
Digitally
signed by (K.R. SHRIRAM, J.)
Gauri A.
Gauri A. Gaekwad
Gaekwad Date:
2021.02.20
16:52:35
+0530
Gauri Gaekwad