Calcutta High Court
Proactive Ship Management Pvt.Ltd vs The Owners And Parties Interested In on 16 September, 2020
Author: Arijit Banerjee
Bench: Arijit Banerjee
ORDER SHEET
G.A.No.1 of 2020
AS No.4 of 2020
IN THE HIGH COURT AT CALCUTTA
Admiralty Jurisdiction
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PROACTIVE SHIP MANAGEMENT PVT.LTD.
VS THE OWNERS AND PARTIES INTERESTED IN VESSEL, "M.V.TUG VARAHI"& ANR.
BEFORE:
The Hon'ble ARIJIT BANERJEE Date : 16TH SEPTEMBER, 2020.
Appearance:
Mr.Swatarup Banerjee,Advocate Mr.Arik Banerjee,Advocate Mr.Basudeb Raj Chakraborty,Advocate Mr.Kaushik Saha,Advocate Mr.Saptarshi Mukherjee,Advocate ...for the plaintiff.
The Court : Leave is granted to amend the prayer portion of the plaint by incorporating a prayer for dispensation of requirement complying with Section 12A of the Commercial Courts Act, 2015.
After hearing learned counsel for the plaintiff, in view of the urgency involved, I dispense with the requirement of complying with Section 12A of the Commercial Courts Act, 2015 and admit the plaint subject to scrutiny. 2
Mr.Kaushik Saha, learned Advocate-on-Record for the plaintiff is appointed Receiver for the purpose of paying deficit Court fees within a week from date. In default of such payment, the suit and the application for arrest filed therein shall stand dismissed automatically without further reference to Court.
The application has been filed for arrest of the defendant No.1 vessel, "M.V. TUG VARAHI" having Tug IMO No.9113757 flying the flag of India. I am told that the said vessel is presently lying afloat at Kolkata Port within the admiralty jurisdiction of this Court.
The plaintiff claims to have entered into a contract for sale of a vessel by the name of M.V. Sri Manguesh to the defendant No.2. The sale agreement was entered into on 14th August, 2017. The payment terms were clearly mentioned in the said agreement. Upon receipt of the advance payment of Rs.5 Lakhs out of the total agreed price of Rs.58,51,000/- (Rupees Fifty-Eight Lacs Fifty One Thousand Only), the plaintiff as the owner/seller of the said vessel handed over the possession of the vessel to the defendant No.2.
The plaintiff contends that the defendant No.2 has scrapped the said vessel and has realized considerable sum of money by sale of such scrap. However, the balance sum of Rs.53,51,000/- has not been paid by the defendant No.2 to the plaintiff, in spite of repeated requests. The entire consideration money was to be paid by the defendant No.2 to the plaintiff by 30.09.2017.
On 9th May, 2019, the plaintiff, through its learned advocate called upon the defendant No.2 to make payment of the balance amount as per the 3 agreement for sale along with interest. However, nothing has been paid by the defendant No.2.
The defendant No.2 is the demise charterer /disponent owner of the defendant No.1, vessel. The plaintiff now seeks to arrest the defendant No.1 vessel to secure its money claim against the defendant No.2.
I have considered the materials on record. There is no doubt that the claim of the plaintiff is a maritime claim within the meaning of Section-4 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.
Section-5 of the said Act, permits the High Court to issue order of arrest of a vessel in rem under various circumstances, one of which is where the court has reason to believe that the person owning the vessel proposed to be arrested is liable for the maritime claim which the plaintiff is seeking to enforce.
To be precise, Section-5(1)(a) reads as follows :-
"the person who owned the vessel at the time when the maritime claim arose is liable for the claim and is the owner of the vessel when the arrest is effected."
Section-5(2) of the said Act permits the High Court to order arrest of any other vessel for the purpose of providing security against the maritime claim in lieu of the vessel against which a maritime claim has been made under this Act, subject to the provisions of sub-section (1).4
Having heard the learned counsel for the plaintiff and having considered the materials on record, I am of the view that the plaintiff has made out a prima facie case and the balance of convenience also lies in favour of passing an order of arrest of the defendant, vessel.
The plaintiff has averred that the only property that the defendant No.2 has within the territorial jurisdiction of this Court is the defendant No.1 vessel and the vessel is likely to leave the jurisdiction of this Court at any time.
Accordingly, there shall be an order directing arrest of the defendant No.1 vessel, "M.V. TUG VARAHI" along with her tackle, engine, equipment, apparels, furniture and all movables lying on board.
The Marshall of this court is directed to forthwith arrest the said vessel, "M.V. TUG VARAHI" along with her tackle, engine, equipment, apparels, furniture and all movables lying on board.
The Marshall shall forthwith communicate this order to the concerned Port Authorities, Customs Authorities and Coast Guard Authorities by FAX message or electronic mail.
Upon payment of necessary charges by the plaintiff, the Marshall shall also serve a copy of the arrest order including a copy of the affidavit of arrest on the Master of the defendant vessel. The Marshall's communication shall be affixed on the MAST of the vessel.
This order will continue unconditionally till 23rd September, 2020. If in the meantime, the plaintiff files an undertaking in terms of Section 11 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, to the 5 effect that the plaintiff shall compensate the defendant vessel and/or the owners and parties interested therein for any loss or damage which may be suffered by the defendants as a result of the arrest and for which the plaintiff may be found liable, by reason of the arrest having been found to be wrongful or unjustified or excessive security having been demanded by the plaintiff, the order of arrest shall continue until further orders. In the event of the plaintiff's failure to file such undertaking, this order shall stand vacated automatically on 23rd September, 2020.
It is further clarified that in the event the defendant deposits the amount claimed by the plaintiff in the suit as security with the Registrar, Original Side of this court, this order of arrest of the defendant vessel shall stand automatically vacated.
The Port Authorities, Customs Authorities and Commandant, CISF are directed to render all necessary assistance to the Marshall to implement this order.
The Marshall and all concerned including the Port Authorities, Customs Authorities and Coast Guard authorities shall act in terms of communication of this order to be made by the Marshall to them.
The application for arrest is made returnable on 23rd September, 2020.
(ARIJIT BANERJEE, J.) ssaha AR(CR)