Calcutta High Court
V.K. Udyog Limited vs The Owners And Parties Interested In on 24 June, 2010
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
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GA No. 2123 of 2008
GA No. 38 of 2009
GA No. 1346 of 2009
AS No. 4 of 2008
IN THE HIGH COURT AT CALCUTTA
ADMIRALTY JURISDICTION
V.K. UDYOG LIMITED
-Versus-
THE OWNERS AND PARTIES INTERESTED IN
THE VESSEL M.V. EUGENIE
For the Petitioner: Mr Ratnanko Banerji, Adv.,
Mr K. Thakkar, Adv.,
Ms Lopita Banerji, Adv.,
Ms Abha Pareek, Adv.,
Mr Swarajit Dey, Adv.
For the Respondent: Mr Tilok Bose, Sr. Adv.,
Mr Anubhav Sinha, Adv.,
Mr Asit Kumar Dey, Adv.
Heard on: June 18, 2010.
BEFORE
The Hon'ble Justice
SANJIB BANERJEE
Date: June 24, 2010.
SANJIB BANERJEE, J. : -
The time-charterer of the vessel, who had furnished security to enable M.V.
Eugenie to leave these shores, has applied for dismissal of the admiralty action
on the principal ground that the plaintiff has no cause of action against the
owners of the vessel and the plaint discloses none. Three ancillary grounds of
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challenge have also been maintained that need to be noticed after the basic facts
are recorded.
The petitioning time-charterer, Vasteast International Pte Ltd of Singapore,
entered into a voyage-charter with Rainbow Sky Shipping Ltd for carrying the
voyage-charterer's cargo of 26,000 mt of iron ore fines from either Haldia or
Paradip to the discharge ports specified in the charterparty. The plaintiff had
entered into an agreement with Golden World Enterprise Ltd of Hong Kong for
sale of 28,000 mt of iron ore at a price of US $ 84 per mt free on board. The Hong
Kong buyer of the plaintiff's goods was to arrange for a vessel to receive the cargo
at the port of Haldia. The plaintiff had the cargo documents processed and filed
the shipping bill for export of 16,500 mt of iron ore fines to be loaded on the
vessel. It appears that the buyer had an arrangement with the voyage-charterer
for the buyer's cargo to be taken on board the vessel.
It is the plaintiff's case that it tendered the cargo to the vessel's agents at
the relevant jetty in Haldia port and loading commenced on June 21, 2008. The
plaintiff's affidavit of arrest claims that the vessel's cranes were defective and
unable to load the cargo resulting in only 15 mt of the cargo being taken on
board. The application says that the vessel's cranes were not capable of lifting the
grabs with the cargo which was noticed by the port authorities and the master of
the vessel was issued a notice by the port authorities on June 21, 2008. The
plaintiff says that grabs of smaller size were made available by it but the vessel's
cranes could still not lift the cargo following which a second notice was issued by
the port authorities on the following day. The plaintiff arranged for a survey to be
conducted of the vessel's cranes. The surveyor filed a report to the effect that the
cranes were unable to lift as per the safe working load declared by the master of
the vessel and recommended that the cranes be repaired with the delay therefor
being to the account of the vessel. The port authorities also suspended loading
operations on the vessel. The plaintiff claims that on June 24, 2008 the master
issued an electronic mail message indicating the vessel's readiness to resume
loading operations on the basis of a revised stowage plan. The plaintiff asserts
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that it then suggested that the vessel choose another berth where shore cranes
could supplement the vessel's cranes and aid in the loading process. Such
suggestion was apparently made by the plaintiff on June 25, 2008.
It is the plaintiff's version that the owners of the vessel thereafter
instructed the master to not load any further cargo as the voyage-charter entered
into by Rainbow at the behest of the buyer had apparently been terminated by
the voyage-charterer. The documents that are on record reveal that the voyage-
charterer had put the petitioning time-charterer on notice of breach on June 21,
2008 since the vessel's cranes were unable to perform as per their declared
capacity. The notice signed off with the assertion that the voyage-charter stood
determined. It does not appear that the termination was immediately accepted by
the time-charterer whereupon the voyage-charterer urged the master to repair
the cranes following which on June 24, 2008 the master prepared a revised
stowage plan and made it available to the plaintiff through the vessel's local
agents.
At the time that the admiralty action was instituted on July 4, 2008, the
plaintiff claimed that it had suffered loss and damage to the extent of
Rs.1,21,49,700/-. The primary basis of the claim was on account of the
introduction of export duty by the Indian government on iron ore and shipping
charges. The plaintiff claimed that it would incur a liability of Rs.89,39,700/- on
account of the export duty.
The application for arrest was moved on July 4, 2008 upon notice to the
time-charterer caveator. The order of July 4, 2008 considered the caveator's
submission that the plaintiff had no maritime claim and it was only the plaintiff's
buyer who could bring proceedings against the time-charterer or, consequently,
the vessel. The court noticed the time-charterer's contention that the voyage-
charter had been terminated (though the order records that the "time charter
agreements have been cancelled") and the owners of the vessel had no further
obligation to load the goods. The plaintiff's argument that the claim was covered
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by clauses 1(a) and 1(g) of Article 1 of the 1999 Arrest Convention was recorded.
The court was satisfied that there was a default on the part of the vessel to load
the goods which gave rise to a maritime claim under Article 1 of the 1999
Convention. The court found that the application for arrest was maintainable and
recorded that notwithstanding the e-mail terminating the voyage-charter,
subsequent communication exchanged between the owners and the voyage-
charterers revealed that the termination had been given a go-by. The time-
charterer's e-mail message of June 25, 2008 accepting the termination of the
voyage-charter was also noticed in the order. By the initial order made in the
present admiralty action, the vessel was arrested till July 10, 2008 with liberty to
the caveator and/or the voyage-charterer to berth the vessel at a site where shore
cranes would be available for assisting the loading.
The time-charterer applied on July 8, 2008 for discharge of the order of
arrest. After noticing the grounds then canvassed by the time-charterer, the
order of July 8, 2008 provided as follows:
"Having considered the submissions of the parties, the Time
Charterer being a party interested in vessel M.V. Eugenie is directed to
furnish security of Rs.1 crore in cash and for such purpose Mr. Asit Dey,
Advocate and Mr. Ashim Kr. Basu, Advocate are appointed Joint Special
Officers. The remuneration of the Joint Special Officers will be decided at a
later date. The Joint Special Officers are directed to deposit the said
amount in a short term Fixed Deposit Account with any nationalised bank.
Upon deposit of such sums, the order of arrest shall stand vacated and
vessel M.V. Eugenie will be entitled to sail out of the territorial waters of
India. As the Time Charterer is not in a position to load the cargo, it is
made clear that the cargo already loaded will be off-loaded by the Time
Charterer before sailing out. Such off-loading be effected in the presence of
the plaintiff's representative, surveyor and Port Trust Authorities. Counsel
for the Time Charterer waives service of the Writ of Summons.
This order is passed as the Shipping Bill was filed on 12.6.2008 i.e. a
day prior to the date when the Notification came into effect. The cargo
could not be loaded by the master of the vessel as the cranes were
defective. No alternative arrangement was made either. No documents have
been produced to refute the claim of the plaintiff pleaded in paragraph 12
of the affidavit of arrest. The Time Charterers are a foreign party so also the
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vessel is a foreign ship. Once the vessel leaves the territorial waters of India
it may not be possible to realise sums and the same may be prejudicial to
the interest of the plaintiff. On the other hand upon production of proper
documents the Time Charterers can always seek modification of the
security amount. Therefore considering the balance of convenience and
inconvenience it would be just and proper in the present facts that the
security of Rs.1 crore be furnished by the Time Charterer."
On July 9, 2008 an order was made recording that the security of Rs.1
crore had been furnished. The vessel sailed on July 13, 2008.
GA No. 2123 of 2008 is the plaintiff's application for arrest. GA No. 1346 of
2009 is the time-charterer's application to replace the cash security by a bank
guarantee. GA No. 38 of 2009 is the time-charterer's petition for rejection of the
plaint or, in the alternative, the dismissal of the suit with ancillary prayers for
release of the security and damages. Upon GA No. 1346 of 2009 being moved, an
order was made on May 20, 2009 permitting the cash security to be replaced by a
bank guarantee. By an order dated December 1, 2009, the time-charterer's
petition for rejection of the plaint was directed to be treated as the affidavit-in-
opposition to the application for arrest. The affidavit-in-opposition to the petition
for rejection of the plaint has been directed, by the same order, to be treated as
an affidavit-in-reply to the application for arrest.
The time-charterer says that the plaint is liable to be rejected or the suit
dismissed since the plaintiff did not and does not have any cause of action
against the owners. The time-charterer asserts that in view of its time-
charterparty it is to be regarded as the owner of the vessel and it is the time-
charterer which has furnished the security to obtain the discharge of the order of
arrest. The time-charterer claims that since the plaintiff's contract with the Hong
Kong buyer was on FOB basis, the plaintiff could not have had any cause of
action against the owners of the vessel (or, consequently, the vessel) as there was
no privity of contract between the plaintiff and the owner. The time-charterer
demonstrates that the contract between the plaintiff and its Hong Kong buyer
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envisaged a scenario that export duty could be imposed and provided that the
export duty would be to the account of the buyer. The time-charterer suggests
that if the plaintiff has suffered any damages at all it is in relation to its contract
for sale of goods and it is only the buyer against whom the plaintiff can proceed.
The time-charterer insists that upon the termination of the voyage-charter, the
time-charterer or the owner of the vessel could not have continued with the
loading of the goods. The point that the time-charterer seeks to make is that if a
party is incapable of remedying the wrong despite its best intention due to some
legal impediment caused by another, such party would not be liable in damages
to the person who had allegedly suffered the loss.
The time-charterer argues that since the application for arrest is pending,
the fact that a tentative view was taken on July 8, 2008 would not stand in the
way of the application for arrest now being dismissed altogether notwithstanding
the vessel having sailed away. The time-charterer contends that, in any event,
the order dated July 8, 2008 recorded that no documents had been produced to
refute the claim of the plaintiff and such order permitted the time-charterer to
seek modification of the security amount "upon production of proper documents
..." The time-charterer urges that the liberty afforded to it to seek modification
would also allow it to seek a complete discharge of the security. The time-
charterer has relied on several documents which appear between pages 17 and
37 of its petition for rejection of the plaint. The time-charterer particularly
stresses on the electronic mail message of June 21, 2008 issued by the voyage-
charterer complaining of alleged defects in the vessel's cranes and recording
therein,
"Therefore, charters (sic, charterers) hereby cancel the fixture note dated
23rd May, 2008 due to owners failed to provide suitable vessel's gear as
stated in the fixture note."
The time-charterer says that the notice of termination did not leave the
time-charterer any room to negotiate or even explain that the allegation of breach
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was unfounded. The time-charterer says that it accepted the termination of the
voyage-charter and communicated its acceptance by the e-mail message of June
25, 2008.
The time-charterer refers to a judgment reported at (2003) 4 SCC 341 (Modi
Entertainment Network v. W.S.G. Cricket Pte. Ltd.) and relies on the principle
recognised at paragraph 27 of the report to the effect that findings "recorded at
the stage of passing an ad interim order, would not bind the same learned Judge
much less they would bind the appellate Court or the parties thereto at
subsequent stage of the same proceeding because it cannot operate as issue
estoppel." In the same vein the time-charterer places a judgement reported at
AIR 1964 SC 993 (Arjun Singh v. Mohindra Kumar) and the acceptance of the
proposition therein that interlocutory orders of stay, injunction or receiver do not
decide the merits of the controversy in issue in the suit and are capable of being
altered or varied.
The plaintiff, however, says that even an ad interim order on an
interlocutory application should ordinarily not be varied unless matters which
were not taken into consideration or were not presented when the ad interim
order was made are brought to the notice of the court. The plaintiff relies on a
passage from paragraph 13 of Arjun Singh that the time-charterer has cited:
"13. ... Even if the rule of res judicata does not apply, it would not follow
that on every subsequent day on which the suit stands adjourned for
further hearing, the petition could be repeated and fresh orders sought on
the basis of identical facts. The principle that repeated applications based
on the same facts and seeking the same reliefs might be disallowed by the
Court does not however necessarily rest on the principle of res judicata. ..."
The plaintiff says that what is of utmost importance in this case is that the
time-charterer had lodged a caveat and even the affidavit of arrest, which is
generally taken up ex parte, was heard upon previous notice to the time-
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charterer. The plaintiff refers to Rules 27, 28 and 30 to 32 of the Admiralty Rules
that apply to the present proceedings:
"27. Caveat against arrest warrant. - The party desiring to prevent the
arrest of any property may cause a Caveat against the issue of a warrant
for the arrest thereof to be entered in the Registry.
"28. Caveat Warrant Book. - For this purpose he shall cause to be filed
in the Registry, a notice, signed by himself or his attorney, undertaking to
enter an appearance in any suit that may be instituted against the said
property, and to give security in such suit in a sum not exceeding an
amount to be stated in the notice, or to pay such sum into the Registry,
and a Caveat against the issue of a warrant for the arrest of the property
shall thereupon be entered in a book to be kept in the Registry called the
"Caveat Warrant Book".
"30. Service of plaint on party entering Caveat. - An attorney
instituting a suit against any property in respect of which a Caveat has
been entered in the Caveat Warrant Book shall forthwith serve a copy of
the plaint upon the party on whose behalf the Caveat has been entered or
upon his attorney.
"31. Security. -Within three days from the service of a copy of the plaint
the party on whose behalf the Caveat has been entered shall, if the sum in
which the suit has been instituted does not exceed the amount for which
he has undertaken, give security in such sum or pay the same into the
Registry; or if it exceeds that amount give security in the sum in which the
suit has been instituted or pay the same into the Registry.
"32. On default, suit may proceed. - After the expiration of twelve days
from the service of a copy of the plaint, if the party on whose behalf the
Caveat has been entered shall not have given security in such sum, or paid
the same into the Registry, the plaintiff's attorney may proceed with the
suit by default, and have it heard: Provided that the Court may, on good
cause shown and on such terms as to payment of costs as it may impose,
extend the time, for giving security or paying the money into the Registry."
The plaintiff says that the caveator had not even indicated the amount for
which it gave an undertaking which was contrary to the requirement of form no.
9 of the Admiralty Rules. The plaintiff asserts that the affidavit of arrest was, for
all practical purposes, disposed of by the order of July 8, 2008 since all relevant
matters had been taken into account and the caveator time-charterer had an
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opportunity to present its documents to ward off the order of arrest or of security
being furnished. The plaintiff urges that the documents appended to the time-
charterer's petition should not be regarded as new documents since such
documents had either been placed before court by the time the order dated July
8, 2008 was made or, at the very least, the caveator had an opportunity to
present the same. The plaintiff says that the orders dated July 7, 2008 and July
8, 2008 found that the notice of termination issued by the voyage-charterer on
June 21, 2007 had been given a go-by and subsequent negotiations ensued
between the parties to the voyage-charter.
The plaintiff says that the legal issue as to whether the plaintiff had a
maritime claim was also decided by the orders of July 7 and July 8, 2008 and
cannot be revisited at the interlocutory stage. The plaintiff submits that
notwithstanding the plaintiff not having commissioned the vessel directly there
was a relationship in the nature of a contract between the plaintiff and those
claiming to represent the vessel and, at the lowest, the time-charterer or those
responsible for the vessel otherwise owed an obligation to the plaintiff. The
plaintiff insists that, in any event, an action in tort is maintainable in this
jurisdiction and there is enough proximity to a claim in tort which is indicated in
the plaint. The plaintiff relies on the International Convention on the Arrest of
Ships of 1999 (the 1999 Geneva Convention) and clauses 1(a), 1(f), 1(g) and 1(h)
under article 1 thereof:
"1. "Maritime Claim" means a claim arising out of one or more of the
following:
(a) loss or damage caused by the operation of the ship;
...
(f) any agreement relating to the use or hire of the ship, whether contained in a charter party or otherwise;
(g) any agreement relating to the carriage of goods or passengers on board the ship, whether contained in a charter party or otherwise;
10(h) loss of or damage to or in connection with goods (including luggage) carried on board the ship;"
The plaintiff says that it is the best arguable case of a suitor in an admiralty action that is accepted for the purpose of assessing the quantum of security that is to be furnished to allow a vessel to sail. The plaintiff relies on a judgment reported at AIR 1996 SC 516 (Videsh Sanchar Nigam Ltd. v. M.V. Kapitan Kud) for such purpose. The plaintiff relies on another judgment reported (1985) 1 AC 711 (Samick Lines Co. Ltd v. Owners of the Antonis P. Lemos) where a sub-sub-charterer brought an action against the vessel and it was found to be maintainable in somewhat similar circumstances. The plaintiff relies on the following passages from the report:
"With regard to the first point, I would readily accept that in certain contexts the expression "arising out of" may, on the ordinary and natural meaning of the words used, be the equivalent of the expression "arising under," and not that of the wider expression "connected with." In my view, however, the expression "arising out of" is, on the ordinary and natural meaning of the words used, capable, in other contexts, of being the equivalent of the wider expression "connected with." Whether the expression "arising out of" has the narrower or the wider meaning in any particular case must depend on the context in which it is used." (From page 727) "My Lords, having considered the six points argued by Mr. Saville, I am not persuaded that any one of those points singly, or any combination of them together, lead to the conclusion that the expression "arising out of"
in section 20(2)(h) of the Act of 1981 should be given the narrow meaning of the expression "arising under," rather than the wider meaning of the expression "connected with." On the contrary, I am satisfied, on four main grounds, that the expression "arising out of" should be given the second and wider meaning. The first ground is the principle, referred to earlier, that a domestic statute designed to given effect to an international convention should, in general, be given a broad and liberal construction. The second ground is that, for the reasons given when discussing the Gatoil case [1985] A.C. 255, I think that there is a clear indication in the arrangement and wording of article 1(1) of the Convention that the expression "arising out of" is there used in the wider of the two meanings of which it is capable. The third ground is that, on the basis that the second 11 ground is correct, the re-arrangement and rewording of article 1(1) of the Convention contained in section 1(1) of the Act of 1956, and followed in section 20(2) of the Act of 1981, cannot have been intended to substitute a narrow meaning for the expression "arising out of" in those two subsections for the wide meaning which it clearly has in article 1(1) of the Convention. The fourth ground is that the English authorities, The St. Elefterio [1957] P. 179 and The Sennar [1981] 1 Lloyd's Rep. 295 support the wider meaning of the expression "arising out of" in section 1(1)(h) of the Act of 1956 and section 20(2)(h) of the Act of 1981. The St. Elefterio as I said earlier, stood unchallenged for some 26 years until the present case, and, in the interval, the legislature saw fit, in the Act of 1981, to re-enact the provision construed in that case in the same terms as before." (From page 731) "... Secondly, unless the agreements referred to in section 20(2)(h) of the Act of 1981 were limited to agreements made directly between the two parties to an action, the only question for consideration was whether the respondents' claim was one arising out of one or more of those agreements. ... Fifthly, there was no such authority to the contrary, both The St. Elefterio [1957] P. 179 and The Sennar [1981] 1 Lloyd's Rep. 295 having been cases in which the relevant agreement had in fact been made between the two parties to the action, so that the question did not arise for decision in them. ...Seventhly, the respondents were, in the action brought by them, asserting negligence of the appellants, their servants or agents in loading at Houston such a quantity of corn that the vessel's draught on arrival at Alexandria exceeded 32 feet in salt water. ... To that catalogue I would add
(d) that it was reasonably foreseeable that, if the vessel's draught on arrival exceeded the maximum draught guaranteed in the sub-sub-charter, the respondents would suffer damage in that they would incur additional costs and expenses. ..." (From page 732) The plaintiff and the time-charterer have joined issue as to whether any of the limbs of Article 1(1) of the 1999 Convention would apply to the claim. The time-charterer contends that a loss or damage caused by the operation of the ship may result in a claim being made by a party having an agreement with the owners or those interested in the vessel. The time-charterer says that sub- clauses (f) and (g) refer to agreements and since there is an agreement in this case - the voyage-charter - it is the voyage-charterer or the person at whose behest the vessel had been commissioned that would be entitled to lodge the claim. The time-charterer urges that since the property in the goods would have 12 passed from the plaintiff to the Hong Kong buyer upon the goods crossing the ship's rails, the plaintiff can only have recourse to the buyer and could not have brought the action against persons interested in the vessel.
There is an arguable case that has been made out by the plaintiff. At this stage, the court is not called upon to conclusively assess the issue. It is for a challenger to demonstrate that the plaintiff has no cause of action or that the plaint does not disclose any. If there is a reasonable doubt in the matter, the action would not be arrested and the challenger would be permitted to carry the same objection to the trial. There is, after all, an underlying undertaking furnished, particularly in an admiralty action, by a plaintiff to compensate the defendant for the loss occasioned due to any interlocutory order obtained by the plaintiff if it is finally found that the plaintiff was not entitled to such order.
Notwithstanding the time-charterer asserting that the documents that it has disclosed in its petition make out a case for discharging the security, it is evident from the order dated July 8, 2008 that the Court considered the notice of termination of June 21, 2008 issued by the voyage-charterer and the subsequent acceptance or confirmation of acceptance of the termination by the time- charterer. The Court concluded on July 8, 2008 that the notice of termination had been given a go-by and subsequent negotiations ensued between the voyage- charterer and the time-charterer. If the notice of termination had immediately been effective or had been accepted, there would have been no occasion for the negotiations for repairing the cranes and making the ship fit to be able to load the cargo. The master's communication of June 24, 2008 claiming that although the fourth crane was undergoing repair work, three other cranes were "competent for prompt cargo operation," would lead to the inevitable inference that the time- charterer did not perceive that the voyage-charter had been determined. The master requested "resumption of loading without further delay" and forwarded a revised stowage plan. It was only on the following day that the termination was 13 accepted and the acceptance communicated to the voyage-charterer. Such matters had been gone into in some detail in the order dated July 8, 2008.
An ad interim order in interlocutory proceedings does not necessarily bind the court or the parties at the later stage of the proceedings. An ad interim order is usually made on the basis of the petitioner's version of things which is supported by an affidavit and the documents relied upon in the petition. If the ad interim order is made ex parte, the respondents are permitted to present their version or documents to detract from the petitioner's case, on the returnable date. The respondents are heard on the returnable date without an affidavit being called for from them. There is no embargo, however, on the respondents carrying an affidavit on the returnable date, limited to any aspect or dealing with the entirety of the matter. If an assessment is made on the returnable date upon hearing the parties and taking into consideration the documents relied upon by them, at the final hearing of the interlocutory proceedings the matter may be considered in greater detail on the strength of the affidavits filed by the respondents and further documents produced. If no further documents are produced and the respondents' affidavit version does not detract from the contents of the petition, there would be little occasion to revisit the decision rendered at the ad interim stage.
Interlocutory orders are, almost invariably, not inflexible. But they may only be varied upon subsequent events being brought on record or it being demonstrated that factors which ought to have been taken into consideration had not been considered earlier. It would be easier to seek the discharge of an ad interim order by urging that notwithstanding there being no additional document produced, other factors not taken into consideration at the ad interim stage ought to be considered at the final stage of the relevant interlocutory matter. It would be slightly more difficult to dislodge an order disposing of an interlocutory matter except by citing subsequent events or documents or matters that had not earlier been placed before court despite due diligence. The principle is not 14 entirely rooted to the doctrine of res judicata, but it is in recognition of the more fundamental principle that the same matters may not be agitated over and over again at the interlocutory stage.
The order dated July 8, 2008 found that the plaintiff had been able to establish, prima facie, that it had a maritime claim. No new material has now been presented by the time-charterer for a different prima facie view to be taken on such aspect. The relevant documents and the conduct of the dramatis personae had also been taken into account before the order dated July 8, 2008 was made; and no new material has now been brought. Some of the documents that the time-charterer has appended to its petition may not have been on record, but these documents do not detract from the finding in the order dated July 8, 2008 that the notice of the termination of the voyage-charter issued on June 21, 2008 had been given a go-by. Whether or not the plaintiff is entitled to claim the export duty from its buyer, is a question that has to be adjudicated at the trial. It is the best arguable case of the plaintiff that has to be considered for the purpose of assessing the quantum of security. Such exercise had been conducted in passing the order dated July 8, 2008 and there is nothing that the time-charterer has brought that would require a revision of such figure.
GA No. 2123 of 2008, which is the plaintiff's application for arrest, is disposed of by confirming the order of July 8, 2008 and requiring the security furnished to remain till the disposal of the suit. GA No. 38 of 2009, which is the time-charterer's petition for rejection of the plaint or dismissal of the suit, is disposed of by permitting the same objection to be repeated at the trial. GA No. 1346 of 2009, which is the time-charterer's application for replacing the cash security by a bank guarantee and on which an order was made on May 20, 2009 permitting such switch, is disposed of with a direction that if the order dated May 20, 2009 has already been carried out, the bank guarantee should be kept alive till the disposal of the suit; in the event no bank guarantee has been furnished to 15 replace the cash security by now, the cash security should continue till disposal of the suit. Costs assessed at 3000 GM will abide by the result of the suit.
Urgent certified photocopies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Sanjib Banerjee, J.)