Bombay High Court
Bhambhani Shipping Ltd vs M.V Adsun Genesis Imo And 2 Ors on 21 December, 2020
Author: B.P.Colabawalla
Bench: B.P.Colabawalla
judges prder l.9561.20..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ADMIRALTY AND VICE ADMIRALTY JURISDICTION
Anjali T. Digitally signed by
Anjali T. Aswale IN ITS COMMERCIAL DIVISION
Aswale Date: 2020.12.21
18:12:54 +0530
JUDGE'S ORDER (L) NO.9561 OF 2020
IN
COMMERCIAL ADMIRALTY SUIT(L) NO. 9555 OF 2020
Bhambhani Shipping Limited ...Plaintiff
V/s
M.V. Adsun Genesis (IMO No.9503366) & Ors. ...Defendants
Mr. Prasad Shenoy a/w Mr. Nirav Shroff i/b M/s. Crawford Bayley
& Co. for the Plaintiff.
None for the Defendants.
CORAM :- B.P.COLABAWALLA, J.
DATE :- DECEMBER 21, 2020.
P. C.:
Not on board, taken on board.
2 At the outset, the Counsel for the Plaintiff states that The Registry has produced the Caveat Register, and there is no caveat against arrest with respect to the Defendant Vessel. Aswale 1/7
judges prder l.9561.20..doc 3 The above Judge's Order has been moved ex-parte after I agreed to grant circulation. The urgent relief sought is the arrest of the Defendant Vessel as there is an apprehension that the Defendant Vessel and which is currently at anchorage of the Port of Mumbai, may sail out of the jurisdiction of this Court. According to the Plaintiff, it has an irrefutable claim against the Defendant Vessel. If the Defendant Vessel is permitted to sail, the Plaintiff will have no legal recourse whatsoever to recover the amounts due to it and its security will be lost forever and eventually these proceedings will be rendered infructuous. 4 Coming to the brief facts, by the present suit, the Plaintiff seeks judgment and decree against the Defendant Vessel, and the arrest, sequestration, condemnation and sale of the Defendant Vessel, for securing and/or satisfying the Plaintiff's aggregate claim of USD 652,668.99 (Approx.INR 4,80,44, 894.26), this includes principal claim of USD 329,377.24 (Approx INR 24,245,000.44) alongwith interest at the rate of 12 % per annum from the due date of each invoice till fling of the present suit being USD 323,291.75 (Approx INR 23,797,055.99) plus further interest at the rate of 12% interest on the principal amount from the date fling of the present suit till realization of Aswale 2/7 judges prder l.9561.20..doc the said monies plus USD 15,000 (Approx INR 11,04,243.03) towards cost of legal proceedings in India as per the particulars of claim. This claim arises out of a Charterparty Agreement dated 28 June 2012 at Exhibit B. 5 The Plaintiff submits that as on 02 April 2014 a sum of USD 554,284.75 is due and payable by Defendant No. 2 under Invoices raised under the CPA 2012. The Plaintiff and Defendant No. 2 have thereafter entered into a Settlement Agreement dated 21st March 2014 for a sum of USD 250,000. The Defendant, however, has only paid a sum of USD 224,907.51, and has failed to make payments with respect to the remainder amount of USD 25,041 in satisfaction of the said Settlement Agreement. Therefore, the Plaintiff contends, as the Settlement Agreement was under the assumption that Defendant No. 2 would only be discharged for the original sums under the Invoices only on full and fnal payments being made under the Settlement Agreement, it is not only the sum of USD 25,041under the Settlement Agreement but also the total sum of USD 329,377 under the original invoices that has become due and payable. 6 Mr. Prasad Shenoy, Counsel however, fairly requests Aswale 3/7 judges prder l.9561.20..doc for the Order of Arrest to be limited to the remainder sum of USD 25,041 due and payable under the Settlement Agreement for today. There is no dispute whatsoever as to the said sum of USD 25,041 being the remainder amount due and payable under the Settlement Agreement. The aforesaid request is made out of abundant caution, in order to avoid any allegations of a wrongful arrest/ excessive security being obtained ex parte. The Plaintiff further requests that it shall renew its application for the present Order of Arrest to be extended to the entire Suit claim after serving upon the Defendants appropriate Notice of the present proceedings, including the present order or if the amount of USD 25,041/- is deposited in this Court pursuant to this order, whichever is earlier.
7 I consider the aforesaid request to be fair, as there can be no doubt whatsoever that the lesser sum of USD 25,041 is prima facie due and payable under the Settlement Agreement. In these circumstances, I fnd that there is no doubt that there is a cause of action in favour of the Plaintiff and that the vessel being at Mumbai anchorage is within the admiralty jurisdiction of this Court. The Plaintiff has made out an ample prima facie case. The balance of convenience lies with the Plaintiff to whom, in my view, Aswale 4/7 judges prder l.9561.20..doc almost irreversible prejudice would be caused if reliefs were to be denied. Accordingly, I order and direct the arrest of the Defendant Vessel M. V. Adsun Genesis (IMO No. 9503366) along with her hull, engines, gears, tackles, bunkers machinery, apparel, plant, furniture, fxtures, appurtenances and paraphernalia, Plant and Machinery at present at anchorage at the Port of Mumbai or wherever she is within the territorial waters of India until the satisfaction of the Plaintiff's claim to the extent of USD 25,041. 8 As mentioned earlier, there is also a Judge's Order. I have seen the Judge's Order along with the hand written corrections countersigned by the advocate for the Plaintiffs and it seems to me to be in the proper form and with the appropriate contents. I accept the undertakings contained in the Judge's Order as undertakings to the Court. I therefore make an order in terms of the Judge's Order in the facts and circumstances of the present case and is signed separately.
9 If the sum of USD 25,041 is deposited as mentioned in this order and the Judge's order, with the offce of the Sheriff of Mumbai, the Sheriff of Mumbai shall immediately inform the Plaintiffs of the same so as to allow the Plaintiff to renew its Aswale 5/7 judges prder l.9561.20..doc application for the present order of arrest to be extended to the entire suit claim as mentioned in paragraph 6 of this order. 10 After service of this order of arrest, if the arrested vessel is not released by furnishing security or bail amount within 6 weeks of service, or an application for vacating the order of arrest is not fled, or the vessel is found abandoned by the person in-charge of the vessel or owner, or is found unmanned, then, in such an event, on an application being made by the plaintiff, the offce of the Sheriff of Mumbai shall present a Sheriff's report for auctioning the vessel within 14 days from the date of receiving communication from the plaintiff's Advocate or from the date of knowledge of abandonment of vessel.
11 The Plaintiff is at liberty to forward a copy of the communication from the offce of the Sheriff of Mumbai along with a copy of this Order by Fax/email/hand delivery/ RPAD to the Port and Customs Authorities.
12 Warrant of Arrest be served upon the Defendant vessel within 8 weeks from passing of this order.
Aswale 6/7
judges prder l.9561.20..doc 13 All concerned to act on an ordinary copy of this Order duly authenticated by the Associate/PS/PA of this Court. 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.) Aswale 7/7