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Gujarat High Court

Monjasa Ltd vs M.T. Alpine Duke (Imo 9470909) on 7 January, 2019

Author: A.J.Desai

Bench: A.J.Desai

         C/AS/3/2019                                      ORDER



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/ADMIRALITY SUIT NO. 3 of 2019

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                                MONJASA LTD
                                   Versus
                       M.T. ALPINE DUKE (IMO 9470909)
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Appearance:
MS PAURAMIB SHETH(841) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1
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 CORAM: HONOURABLE MR.JUSTICE A.J.DESAI

                              Date : 07/01/2019

                                ORAL ORDER

1. Learned Advocate Ms Paurami Sheth mentioned this matter for urgent circulation today. The permission is granted for urgent circulation and suit is taken up for hearing for urgent interim orders.

2. Learned Advocate Ms. Paurami Sheth, has submitted that the Plaintiff supplied bunkers to the Vessel the Vessel MT Megacore Philomena which is the Sister Vessel of the Defendant Vessel as the Beneficial Owner of both the Vessels was one Oxygen Maritime Management Inc., that the said Supply was made at the instance of Owner/beneficial Owner of the Vessel and for the credit of the MT Megacore Philomena, sister Vessel of the defendant vessel, that the plaintiff raised invoice for the said supply to all concerned of the said Vessel MT Megacore Philomena but has not been paid, that the Plaintiff initiated legal proceedings against the Vessel MT Megacore Philomena before the United States District Court Central District of California ("the US Page 1 of 4 C/AS/3/2019 ORDER Proceedings") for the said supply, that in the said proceedings the Plaintiff had taken out the Application under which the US Court ordered payments of USD 112, 240 to the Plaintiff's out of the total claim of USD 396,296.83 plus interest being the amount of Bunkers remaining on Board as per law applicable to US court, that for balance amount of USD 287.236,64 plus interest proceedings are currently pending, that since the Vessel owner failed to secure balance claim of the Plaintiff, the Vessel MT Megacore Philomena was sold vide a judicial sale held by US Courts, that the Plaintiff has learnt that against the Vessel MT Megacore Philomena there has been several creditors which have preferred action in rem against the sale proceeds of the Vessel as a result the plaintiff would not in a position to get entire balance claim from the US district court and hence the Plaintiff has approached this Hon'ble Court for balance payment of Invoices as per particulars of claim, that in case of any amount is received from the US court the Plaintiff will inform to the Hon'ble Court and take necessary steps and that if it succeeds in its claims and receives the monies from this Court against the Vessel MT Megacore Philomena, it shall take steps to inform the US proceedings accordingly, that the Plaintiff has maritime claim and hence filed the present suit and inter alia prayed for arrest of defendant vessel for outstanding amount of the Sister Vessel, MT Megacore Philomena.

3. Upon hearing Ms. Paurami Sheth, Learned Advocate for the plaintiff and upon reading the plaint herein declared at Ahmedabad on 07.01.2019 filed by the advocate for the plaintiff herein and the affidavit of Mr. Raju Prabhatbhai Desai, Authorised Person of the Page 2 of 4 C/AS/3/2019 ORDER Plaintiff above named affirmed on 07.01.2019 and upon hearing counsel for the plaintiff and upon the Plaintiff giving an undertaking in writing to the Registrar of this Court to pay such sums by way of damages as this Court may award as compensation in the event of the defendant sustaining prejudice by this order, I do order that the Registrar of this Court do issue a warrant for the arrest of the defendant vessel, M.T.ALPINE DUKE (IMO 9470909) along with her hull, engines, gears, tackles, bunkers, machinery, apparel, plant, furniture's, equipments and all appurtenances, at present lying Sikka Port within the Indian territorial waters and that the Warrant of Arrest be executed at any time of the day or night or on Sundays or holidays and I do further order that the Port Officer and the Customs Authorities at Sikka Port do effect the arrest, seizure or detention of the defendant Vessel at present lying at Sikka Port within the Indian territorial waters or such other place wherever she may be within the territorial waters of India and I do further order that in the event of the defendant and/ or those interested in her depositing in this Court the principal amount of USD 287,237 plus interest amounting to USD 97,176 from due date of invoice till date along with USD 15,000 for cost of litigation in India aggregating to USD 399,413 with further interest at the rate of 2% per month from date of suit till its realization as per particulars of claim, the said Warrant of Arrest shall not be executed against the defendant Vessel M.T. ALPINE DUKE at present lying at Sikka Port within the Indian territorial waters. It is hereby clarified that the Defendant Vessel is entitled to continue with cargo operations while remaining under arrest.

4. The Port Officer and the Customs Authorities at Sikka are directed to arrest the Defendant Vessel at present lying at Sikka port within the Indian territorial waters and to keep the vessel under arrest until further orders of this Court. It is further ordered that the Port Officer and the Customs Officer at Sikka shall render all assistance to the plaintiff or its representative in effecting the warrant of arrest for the Defendant Vessel.

5. It is open for the plaintiff's advocate to communicate the above order by fax message/Email at their own cost and the authorities are directed to act on fax/Email message with an ordinary copy of this order.

6. The undertaking filed by Mr. Raju Prabhatbhai Desai, Authorised Person of the plaintiff is taken on record.

7. Notice to the Defendants returnable on 16.01.2019. It is made clear that it will be open for the Defendant to approach this Court even prior to the returnable date with adequate notice to the plaintiff.

8. Office is directed to serve the warrant of arrest on the Defendant Vessel through Agent/Master and send copy thereof to Port and Customs Authorities at Sikka.

Direct service is permitted today.

(A.J.DESAI, J) *F.S.KAZI.....