Calcutta High Court
Hooghly Nadi Jalpath Paribahan ... vs The Owners And Parties Interested In The ... on 24 June, 2008
Author: Indira Banerjee
Bench: Indira Banerjee
In the High Court at Calcutta Admiralty Jurisdiction Original Side.
G.A. No. 2640 of 2007 A.S. No. 4 of 2007 Hooghly Nadi Jalpath Paribahan Samabaya Samity Ltd.
Vs. The owners and parties interested in the vessel M.V. Taxiarchies Sierra Limasol Before The Hon'ble Justice INDIRA BANERJEE Date : 24.6.2008.
Judgment This application, filed by the plaintiff, is for amendment of the Cause Title of the plaint, as indicated in red ink in a copy of the plaint annexed to the petition by adding the Board of Trustees for the Port of Kolkata as defendant No. 2 and other consequential reliefs.
The petitioner claims to be a Co-operative Society, registered under the West Bengal Co-operative Societies Act,, 1983. The petitioner provides inter alia public utility services such as plying of ferry, launches boats and steamers across the river Hooghly and also maintains, for the aforesaid purpose, various jetty systems including the Nazirgunge Ferry Jetty at Nazirgunge in Howrah district, outside the jurisdiction of this Court. The petitioner also claims to be the owner of the launch M. V. Jalajatra. 2
The foreign sea going vessel M. V. Taxiarchies Sierra Limsol, hereinafter referred to as the Vessel, was lying under arrest at Haldia, outside the jurisdiction of this Court.
It is alleged that on 7th September, 2006, at around 11.30 A.M. the said vessel violently collided with the Nazirgunge Ferry System, causing extensive damage to the said Ferry System as also to the motor launch M. V. Jalajatra, anchored at the said ferry system.
According to the petitioner on 7th September, 2006 the petitioner addressed a letter to the Director, Marine Department of the Kolkata Port Trust and requested him to cause an enquiry into the loss and damage to the jetty.
By a letter dated 7th September, 2006, the Director, Marine, Kolkata Port Trust informed the petitioner that the vessel was responsible for damage to the jetty and the launch, and therefore, liable to pay the costs of repair of the jetty and the launch as well as re-commissioning of the jetty.
The petitioner, thereafter, took up the matter with the Master of the vessel. On the request of the owners of the vessel, Octavia Trading S.A. of Piracus, Greece, reputed Marine Surveyors, Salvage Association, carried out an inspection of the wreckage on 21st December, 2006 and submitted a report.
The petitioner has instituted this Admiralty Suit against the owners and parties interested in the vessel claiming damages. In the suit, the petitioner moved an application for an interim order directing the owners and parties interested in the vessel to furnish security.
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In course of hearing of the aforesaid application, the attention of this Court was drawn to an order dated 22nd August, 2006 of T. K. Dutt, J wherefrom it appears that the Court allowed the vessel to be shifted, under arrest, from the Haldia Dock Complex to the Kolkata Dock System, on an application of the Kolkata Port Trust. The relevant part of the order of His Lordship is extracted herein below for convenience :
"It appears from the submission of Mr. Aninda Mitra, learned Senior Counsel for the Board of Trustees for the Port of Kolkata, that it has become very urgent to shift the vessel in question under arrest from Haldia Dock Complex to Kolkata Dock System to ensure proper working at Haldia Dock Complex. Mr. Mitra has further submitted, under insturction from his clients, that the Board of Trustees for the Port of Kolkata undertakes to safely and securely shift the vessel in question, namely, "".V. Taxiarchis Sierra" from Haldia Dock Complex to Kolkata Dock System and that the said Board of Trustees for the Port of Kolkata shall make payment for all the costs involved in the process of such shifting at the first instance."
In view of the aforesaid order recording the undertaking given by Kolkata Port Trust in Court, to safely shift the vessel form Haldia Dock Complex to the Kolkata Dock Complex, this Court declined the prayer of the petitioner for an order on the owners and parties interested in the vessel, to furnish security.
In view of the observations made by this Court in its order dated 17th August, 2007, the petitioner has brought out this application for adding the Board of Trustees of the Port of Kolkata as defendant in the Admiralty Suit. The 4 petitioner has sought leave of this Court, to amend, just the cause title of the plaint, in the manner indicated in red ink in the copy of the plaint annexed to the petition.
Mr. Deb appearing in support of the application, relied on the observations made by this Bench in its order dated 17th August, 2007 and submitted that the presence of Kolkata Port Trust was essential for deciding the question of liability for the loss or damage, if any, to the jetty system, as also the launch referred to above.
Mr. Deb submitted that under Order 1 Rule 10(2) the petitioner could add, as defendant in the suit, any party which should have been impleaded as defendant in the suit.
Mr. Deb argued, that if Kolkata Port Trust had not suppressed the fact that the vessel was under arrest, and being moved from one dock complex to another under the supervision of Kolkata Port Trust, at the time when the collission with the jetty took place, the petitioner would have impleaded Kolkata Port Trust as defendant.
Mr. Deb submitted that any person who had a direct interest in the subject matter of the suit would be impleaded as defendant. In support of his aforesaid submission, Mr. Deb cited the judgment of Kerala High Court in K. S. Abraham Vs. Chandy Rosamma reported in AIR 1989 Kerala 167. Mr. Deb also referred to the definition of ' interest' in Black's Law Dictionary (7th Edition).
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In this case, the subject matter of the suit are the jetty and the launch of the petitioner to which damage had been caused, and the vessel from which the plaintiff is seking to recover damages. Kolkata Port Trust has no direct interest in either.
Mr. Banerjee appearing on behalf of the Kolkata Port Trust, on the other hand, submitted that the Kolkata Port Trust was not a necessary party to the suit. The Admiralty Suit was a suit in rem and the addition of Kolkata Port Trust is party to the suit would change the entire complexion and/or nature and character of the suit.
Mr. Banerjee argued, with some force, that the claim of the petitioner, if any, against Kolkata Port Trust, was barred by limitation, in view of section 120 of the Major Port Trust Act, 1963 which provided for limitation of six months for institution of a suit against Kolkata Port Trust.
Mr. Banerjee cited the judgment of the Supreme Court reported in 2005(4) SCC 613, AIR 1996 SC 642 (paragraph 6) in support of his submission, that a suit against Kolkata Port Trust was barred by limitation.
There can be no doubt that a suit against Kolkata Port Trust for recovery of damages had become barred by limitation as on the date on which this application for addition of Kolkata Port Trust as defendant was filed in Court.
The question of whether the Major Port Trust Act excludes application of sections 4 to 28 of the Limitation Act, 1963 is wholly academic, 6 since the said sections are even otherwise not attracted. The Kolkata Port Trust was not omitted to be impleaded by reason of any error or mistake In Kastuit Vs. Iyyamperumal reported in (2005) 6 SCC 733 cited by Mr. Deb, the Supreme Court held that the two tests for determining whether a party was necessary were (I) whether there was right to some relief against such party and (ii) whether the Court would be unable to pass an effective decree in the absence of the parties. The Kolkata Port Trust does not satisfy the tests.
. Moreover, there is substance in the submission of Mr. Banerjee that there are no pleadings whatsoever in the plaint, with regard to Kolkata Port Trust, save and except in paragraph 19 of the plaint, where there is only a reference to a letter written by Kolkata Port Trust with regard to a liability of the owners and parties interested in the vessel, towards the damages..
Mr. Deb argued that even though the claim of the petitioner for damages may not be enforceable against the Kolkata Port Trust and it may not be a necessary property, Kolkata Port Trust is still a proper party, whose presence is necessary for determination of liability for the damages caused to the petitioner.
However, there are no pleadings in the plaint in this regard as pointed out by Mr. Banerjee. In the absence of any pleadings in the plaint demonstrating how the Kolkata Port Trust is a proper party, this application must fail. The plaint neither discloses any cause of action against Kolkata Port Trust, nor the necessity or propriety of its being impleaded defendant. No other amendment of the plaint has been sought, except for the cause title. 7
The application is, thus, dismissed without any order, however, as to costs.
Urgent certified xerox copy of this order shall be supplied to the parties, if applied for, upon compliance of all requisite formalities.
(Indira Banerjee, J) msen/sksr