Gujarat High Court
Siddhart Bak, Fitter vs Nand Hazira Imo No 8845456 on 26 July, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/AS/2/2022 ORDER DATED: 26/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/ADMIRALTY SUIT NO. 2 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In R/ADMIRALTY SUIT NO. 2 of 2022
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SIDDHART BAK, FITTER
Versus
NAND HAZIRA IMO NO 8845456
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Appearance:
NOTICE SERVED BY DS for the Defendant(s) No. 1
MS PAURAMI B. SHETH(841) for the Plaintiff(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 26/07/2022
ORAL ORDER
1. Draft amendment as prayed for in OJCA No.1 of 2022 is granted and the same be carried out forthwith.
2. Heard Learned advocate Ms. Paurami Sheth for the Plaintiffs/ Applicants.
3. Learned advocate Ms. Paurami Sheth for the Plaintiffs submitted that the original Plaintiffs have filed above Suit for outstanding amount of their respective unpaid wages contending interalia that the services of the Plaintiffs were hired for the Defendant Vessel by entering into individual written contract through one M/s. Tapti Waterways Private Page 1 of 16 Downloaded on : Sat Dec 24 22:02:28 IST 2022 C/AS/2/2022 ORDER DATED: 26/07/2022 Limited, that upon their appointments, the Plaintiffs were entitled for wages as well regular supply of Fuel, Food and other bare necessities, that the Plaintiffs have been paid wages only till October, 2021 and further wages were due from 01.11.2021 onwards, that the Plaintiffs have come to know that one Yes Bank has filed the suit before this Court and procured arrest of the Defendant Vessel and later on, in pursuance of the Application of the Yes Bank, this Court has passed order for sale of the Vessels, that having come to know about the directions for sale of the Vessel, the Plaintiffs preferred the present Suit and prayed for following reliefs in paragraph 20 of the Plaint which reads thus :-
a. That the Defendant Vessel Nand Hazira (IMO No.8845456) and her Owner be ordered and decreed to pay to the Plaintiffs the amount of INR 70,000/- towards their wages from 01.11.2021 till 20.01.2022, court fees and legal cost and expenses together with wages from 21.01.2022 till date of sign off and further interest thereon at the rate of 12% p.a. from due date of payment of wages until payment as per particular of claim;
b. That the Defendant Vessel Nand Hazira (IMO Page 2 of 16 Downloaded on : Sat Dec 24 22:02:28 IST 2022 C/AS/2/2022 ORDER DATED: 26/07/2022 No.8845456) together with her hull, engines, gears, tackles, bunkers machinery, apparel, plant, furniture, fixtures, appurtenances and paraphernalia, at present lying at Hazira Port or wherever she is within the territorial waters of India, be arrested by a Warrant of Arrest of this Hon'ble Court and the same be condemned in respect of the Claim herein and be ordered to be sold along with her hull, engines, gears, tackles, bunkers machinery, apparel, plant, furniture, fixtures, appurtenances and paraphernalia and the net sale proceeds thereof be ordered to be applied to the satisfaction of the Plaintiff's claim herein and the cost of this Suit;
c. That pending the hearing and final disposal of the suit this Hon'ble Court be pleased to order and direct the arrest of the Defendant Vessel Nand Hazira (IMO No.8845456) along with her hull, engines, gears, tackles, bunkers machinery, apparel, plant, furnitures, fixtures, appurtenances and paraphernalia, at present lying at Hazira Port, or wherever she is within the territorial waters of India and also restrain her from beaching and breaking;
Page 3 of 16 Downloaded on : Sat Dec 24 22:02:28 IST 2022C/AS/2/2022 ORDER DATED: 26/07/2022 d. That pending the hearing and final disposal of the suit this Hon'ble Court be pleased to direct to permit the Plaintiffs to sign off prior to contract period and further direct the concerned Authorities at Hazira Port to arrange for sign off, of the Plaintiff;
e. for interim and ad-interim orders in terms of prayers (b), (c) and (d) above;
f. for costs of this Suit;
g. for such further and other reliefs as this Hon'ble Court may deem fit and proper in the nature and circumstances of the case.
4. Learned advocate Ms. Paurami Sheth submitted that though by order dated 20.01.2022, this Court directed to arrest the Defendant Vessel in the present Suit, further directed that the order of arrest was not required to be effected as in the meantime, the Defendant Vessel was already sold and the sale proceeds of a sum of Rs. 2,35,00,000/- were directed to be retained in the Registry as per order dated 06.01.2022 in pursuance of the Application filed by Yes Bank, the Plaintiff of Admiralty Suit No. 16 of 2021.
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5. Learned advocate Ms. Paurami Sheth submitted that the order dated 20.01.2022 was served to the Owner of the Defendant Vessel through email dated 21.01.2022 at 1.40 pm but the Defendant Vessel has till date not appeared through its erstwhile Owner or filed written statement. Even after the Defendant Vessel was sold and sale proceeds were deposited with the Registry, the erstwhile Owners have not entered appearance in any of the Suit filed against the Defendant Vessel.
6. Learned advocate Ms. Paurami Sheth further submitted that even after the Defendant Vessel was sold, the Plaintiffs continued to serve on board the Defendant Vessel until new owner initiated the process to take over the possession of the Defendant Vessel on 15.02.2022 and they have been signed off on 14.02.2022.
7. The Plaintiffs have then filed above Application under which, the Applicants/Original Plaintiffs seeks a summary judgment/decree against the Defendant Vessel under Order XIII-A read with Order VIII Rule X of the Code of Civil Procedure, 1908 ("CPC") as amended by the Commercial Courts Act, 2015 read with Section 12 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.
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8. It is submitted by the Plaintiffs/Applicants in the above Application that immediately after taking possession of the Defendant Vessel, the new Owner requested the Plaintiffs/Applicants to continue on Board the Vessel and accordingly paid them wages for the period from 15.02.2022 to 19.02.2022, that the Applicants are therefore entitled to wages for a sum of Rs. 66,833/- calculated for the period from 01.11.2011 to 14.02.2022 i.e. date on which they served for the erstwhile Owner plus accrued interest till date of this Application of Rs.2,005/- payment and cost of litigation of Rs. 24,538/- aggregating to Rs. 93,376/- with further interest at the rate of 12% per annum on Rs. 66,833/- from date of order till its realization as per Schedule or at the reasonable rate of the interest the Hon'ble Court may deem it fit, that even after the Defendant Vessel was sold and sale proceeds were deposited with the Registry, the Defendant Vessel has till date not appeared through its erstwhile Owner, or filed written statement and the dues of the Plaintiffs have been admitted inasmuch as they have not been denied, that the Plaintiffs have maritime lien consequently entitled to be paid first in priority and has prayed for the following reliefs in Civil Application No.1 of 2022 :-
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a) pass an order and decree on admission in favour of the Plaintiffs and against the Defendant vessel Nand Hazira (IMO NO 8845456) and her owners, for the principal amount of INR 66,833.00 plus accrued interest till date of this Application of INR 2,005.00 payment and cost of litigation of INR 24,538.00 aggregating to INR 93,376.00 with further interest at the rate of 12% per annum on INR 66,833.00 from date of order till its realization as per Schedule and further passed decree that each Plaintiff is entitled for the amount mentioned against their respective name in the Schedule.
9. The Schedule referred herein above and annexed to the Application of the salary due is reproduced herein under:
SCHEDULE OF SALARY DUE OF CREW OF NAND HAZIRA N NAME RANK MONTHL NOV. DEC. JAN. FEB Total Y (INR) (INR) (INR) (INR) (INR)
1. SIDDHART FITTER 10,000 4,333 10,000 10,000 5,000 29,333 BAK
2. DHAVAL OS 15,000 -- 15,000 15,000 7,500 37,500 TANDEL
10.This Court issued Notice on the said Application upon Simcement Private Limited, Page 7 of 16 Downloaded on : Sat Dec 24 22:02:28 IST 2022 C/AS/2/2022 ORDER DATED: 26/07/2022 Mumbai, the erstwhile Owner of the Defendant Vessel vide order dated 06.07.2022 and directed the Plaintiffs/Applicants to serve to Simcement Private Limited, Mumbai through email. Learned advocate Ms. Paurami Sheth submitted that in pursuance of the said order, the notice is served upon Simcement Private Limited, Mumbai vide Email dated 18.07.2022 and tendered copy of the said Email indicating.
11.Learned advocate Ms. Paurami Sheth submitted that the averments made in the plaint and Application with respect to their unpaid wages have gone unchallenged inasmuch as the registered Owner of the Defendant Vessel despite service of the Arrest Warrant and Notice of Application have not rebutted the same and thereby admitted the dues of the Plaintiffs, the Plaintiffs have maritime claim and maritime lien under Section 4 (1) (0) and 4 (1) (w) read with section 9 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 (For short "the Admiralty Act") and consequently entitled to be paid first in priority out of sale Proceeds lying with the Registry of this Court and hence the plaintiffs are therefore required to be granted a decree on admission for wages for principal amount of Rs. 66,833/- plus accrued interest till date of this Application Page 8 of 16 Downloaded on : Sat Dec 24 22:02:28 IST 2022 C/AS/2/2022 ORDER DATED: 26/07/2022 of Rs.2,005/- payment and cost of litigation of Rs.24,538/- aggregating to Rs. 93,376/- with further interest at the rate of 12% per annum on Rs.66,833/- from date of order till its realization as per Schedule or at the reasonable rate of the interest the Hon'ble Court may deem it fit from date of order till its realization as per Schedule.
12. MS. Sheth, the learned advocate has also invited attention of this Court to the following documents annexed with the Plaint and above Application:
a. The Employment Contracts (Page Nos.15 to 24 of the Plaint), b. Letter dated 03.01.2022 addressed to M/s.
Tapti Waterways Private Limited Copy of chart showing outstanding Amount of wages (Page Nos.25 to 26 of the Plaint) c. reply dated 04.01.2022 of M/s. Tapti Waterways Private Limited (Page No.27 of the Plaint) d. Article of Agreement for Employment of Seafarers (Page Nos.7 to 10 of the Application)
13. In support of her submissions, Ms. Sheth, the learned advocate relied on the following judgments:
Page 9 of 16 Downloaded on : Sat Dec 24 22:02:28 IST 2022C/AS/2/2022 ORDER DATED: 26/07/2022 I Order dated 04.02.2021 passed by this Court in case of Credit Suisse AG v. MV Sam Hawk, AS No.17 of 2020.
II Order dated 12.07.2022 passed by this Court in case of Yes Bank V. Nand Aparna AS No. 16 of 2021.
III Order passed in the case of Raj Shipping Agencies vs. Barge Madhwa and Anr., 2020 SCC Online Bom 651.
14.This Court considered the submissions advanced by Ms. Paurami Sheth, the learned advocate for the plaintiffs, having gone through the Plaint and affidavit-in-support, the Civil Application and the documents annexed with the Plaint and the Application. It is evident from Employment Contract, Letters of the Plaintiff addressed to M/s. Tapti Waterways Private Limited and reply of M/s. Tapti Waterways Private Limited annexed with the Plaint that the plaintiffs have been employed to serve on the Defendant Vessel through M/s. Tapti Waterways Private Limited and they were not paid wages from 01.11.2021. It is further evident from Article of Agreement for Employment of Seafarers that the plaintiffs served upon the defendant Vessel for erstwhile Page 10 of 16 Downloaded on : Sat Dec 24 22:02:28 IST 2022 C/AS/2/2022 ORDER DATED: 26/07/2022 Owner till 14.02.2022 and hence they are entitled for the wages till that date. Thus having considered the submissions thereto and more particularly in view of the fact that the Plaintiffs/Applicants herein have the claim against the sale proceeds of the vessel lying with this Court, I am of the view that the prayer sought in the present Civil Application for passing decree deserves to be allowed.
15.Further, it is evident from Employment Contract, Letters of the Plaintiff addressed to M/s. Tapti Waterways Private Limited and reply of M/s. Tapti Waterways Private Limited annexed with the Plaint that the plaintiffs have been employed to serve on the Defendant Vessel through M/s. Tapti Waterways Private Limited, they were not paid wages from 01.11.2021. It is also evident from Article of Agreement for Employment of Seafarers that the plaintiffs served upon the defendant Vessel for erstwhile Owner till 14.02.2022 and hence they are entitled for the wages till that date. Thus it is proved that the Plaintiffs served on the Defendant Vessel and have not been paid wages and their claim stand proved.
16. Records indicate that Notices been duly served upon the Owner of the Defendant Vessel. This Page 11 of 16 Downloaded on : Sat Dec 24 22:02:28 IST 2022 C/AS/2/2022 ORDER DATED: 26/07/2022 Court has directed that the Warrant of the order of arrest not required to be effected on the Defendant Vessel in view of her sale but the Order was duly served upon the Owner of the Defendant vessel. The Owner of the Defendant Vessel has not appeared before this Court nor filed Written Statement within stipulated time as required under Order VIII Rule 10 of the CPC, 1908 as amended by the Commercial Courts Act, 2015. In view of above the liability of owner can be said to be uncontroverted.
17. The Plaintiffs have initiated action in rem against the Defendant Vessel. The fundamental legal nature of an action in rem as distinct from its eventual object is that it is a proceeding against res. Thus, when a ship represents such res as is frequently the case, the action in rem is an action against the ship herself. The action is a remedy against the corpus of the offending ship. It is distinct from an action in personam which is a proceeding inter-partes founded on personal service on Defendant within jurisdiction, leading to a judgment against the person of the Defendant. In an action in rem no direct demand is made against the Owner of the res personally. The distinction between an action in rem and an action in personam is therefore a matter of Page 12 of 16 Downloaded on : Sat Dec 24 22:02:28 IST 2022 C/AS/2/2022 ORDER DATED: 26/07/2022 substance and not of mere form.
18. The original Plaintiffs/Applicants have also filed the above Application under the provisions of Order XIII-A of the CPC, 1908 read with Section 12 of of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 and sought decree/summary Judgment against the sale proceeds of the Defendant Vessel.
19. Considering the submissions advanced by the learned advocate Ms. Paurami Sheth for the Plaintiffs, upon perusal of the documents annexed by the Plaintiffs in support of its claim and in view of the fact that despite service, the Registered/Erstwhile Owner has not entered appearance till date nor filed written Statement rebutting the averments made in the Suit remain unchallenged and thereby the dues of the Plaintiffs have been admitted. I am of the opinion that from the pleadings and materials on record, no purpose would be achieved by leading oral evidence and directing the Plaintiffs to undergo a full-fledged trial and the same would be grossly unfair and there is no compelling reason for the same especially when the erstwhile Registered Owner of the Defendant Vessel has admitted its liability by not rebutting the same and not filing the Written Page 13 of 16 Downloaded on : Sat Dec 24 22:02:28 IST 2022 C/AS/2/2022 ORDER DATED: 26/07/2022 Statement. It is thus evident that Plaintiffs have made out a case for grant of decree on non rebuttal in their favour. It is therefore held that the Plaintiffs have served as the Crew on Board and their unpaid wages have maritime lien on the Defendant vessel as per Section 9 of The Admiralty Act, 2017.
20.Taking into consideration the provisions of Order VIII Rule 1 and Order VIII Rule 10 read with Order XIII-A of the CPC, 1908 undisputably the case of the present Plaintiffs and facts and circumstances of the present case, the Plaintiffs have sought prayers against the Defendant Vessel by seeking a decree only against the sale proceeds of the Defendant Vessel and, therefore, there is force in the submissions made by Ms. Sheth, the learned advocate appearing for the applicant.
21. Even otherwise this Court is of the opinion that it may on its motion pass a decree in favour of the Plaintiff on the basis of the admission of the Plaintiffs' Claim in its entirety by not rebutting the same or not filing Written Statement by the erstwhile Registered owners of the Defendant Vessel even though the Plaintiffs have not made application specifically under Order XII Rule 6 of the Code Page 14 of 16 Downloaded on : Sat Dec 24 22:02:28 IST 2022 C/AS/2/2022 ORDER DATED: 26/07/2022 of Civil Procedure, 1908 while exercising the powers of the Court under Section 151 of the Code of Civil Procedure, 1908.
22.In view of the same, a case has also been made out for passing a judgment/decree in favour of the Plaintiffs on basis of the above submissions. In such circumstances the present suit is decreed as below:
a) That there be an order and decree that the claim of the Plaintiffs in the Suit is secured in favour of the Plaintiffs by a valid and subsisting maritime lien over the sale proceeds of the Defendant Vessel NAND Hazira ((IMO NO 8845456), lying with the Registry of this Court.
b) That there be an order and a decree against the sale proceeds of the Defendant Vessel Nand Hazira (IMO NO 8845456) in favour of the Plaintiffs together with further interest thereon at the rate of 12% per annum from the due date of payment of wages till realization.
c) No other priority except the aforesaid are adjudicated by this Court under Section 9 read with Section 10 of the Admiralty Act, 2017.Page 15 of 16 Downloaded on : Sat Dec 24 22:02:28 IST 2022
C/AS/2/2022 ORDER DATED: 26/07/2022
23. The suit stands decreed to the aforesaid extent only. The Civil Application No. 1 of 2022 is disposed of in the aforesaid terms.
There shall be no order as to further costs.
(VAIBHAVI D. NANAVATI,J) Pallavi Page 16 of 16 Downloaded on : Sat Dec 24 22:02:28 IST 2022