Gujarat High Court
Rossmere International Limited vs Dv Dale Ex Name Mt Gamma Gamma Ii Mercury ... on 17 October, 2018
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/AS/41/2018 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION NO. 2 of 2018
IN
R/ADMIRALITY SUIT NO. 41 of 2018
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DV DALE EX NAME MT GAMMA GAMMA II MERCURY IMO NO 8917792 Versus ROSSMERE INTERNATIONAL LIMITED ========================================================== Appearance:
MR SALIL M THAKORE for the PETITIONER(s) No. MS PAURAMIB SHETH for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 17/10/2018 IA ORDER Heard Mr. Mihir J. Thakore, learned Senior Counsel with Mr.Salil M. Thakore, learned counsel for the applicant - original defendant No.1 and Mr. Saurabh N. Soparkar, learned Senior Counsel with Ms.Paurami B. Sheth and Mr.Aman Pandya, learned counsel for the respondents.
2. It is a matter of record that this Court vide order dated 06.10.2018 has provided as under:
"1. Ms.Paurami B. Sheth, learned advocate for the plaintiff mentioned the matter and considering the urgency, the matter was permitted to be circulated today at 1.30 PM.
2. Heard Mr.Saurabh Soparkar, learned senior advocate with Ms. Paurami Sheth, learned advocate for the plaintiff and Mr. Mihir Thakore, learned senior advocate with Mr. Salil Thakore, learned advocate on caveat on behalf of RV International DMCC.
3. After initial hearing, Mr. Mihir J. Thakore, learned senior advocate states that the defendant vessel MT DV DALE IMO No. 8917792 shall not beached and the defendant vessel shall remain under coldstagging in shallow water.Page 1 of 7
C/AS/41/2018 IA ORDER
4. The aforesaid statement is without prejudice to rights of both the parties.
5. The matter is kept for further hearing on 22.10.2018. The parties shall complete the pleadings by 17.10.2018.
6. The Registry shall inform the port authorities of Jafrabad as well as Alang about this order today itself."
3. The above cited order was further clarified vide order dated 11.10.2018, wherein this Court has observed as under:
"Heard Mr. Mihir J. Thakore, learned Senior Counsel with Mr. Salil M. Thakore, learned counsel for the applicant - original defendant No.1 and Mr. Saurabh N. Soparkar, learned Senior Counsel with Ms. Paurami B. Sheth, learned counsel for opponent No.1- Original plaintiff.
2. This Court vide order dated 06.10.2018 has recorded the following order:
"1. Ms.Paurami B. Sheth, learned advocate for the plaintiff mentioned the matter and considering the urgency, the matter was permitted to be circulated today at 1.30 PM.
2. Heard Mr.Saurabh Soparkar, learned senior advocate with Ms. Paurami Sheth, learned advocate for the plaintiff and Mr. Mihir Thakore, learned senior advocate with Mr. Salil Thakore, learned advocate on caveat on behalf of RV International DMCC.
3. After initial hearing, Mr. Mihir J. Thakore, learned senior advocate states that the defendant vessel MT DV DALE IMO No. 8917792 shall not beached and the defendant vessel shall remain under coldstagging in shallow water.
4. The aforesaid statement is without prejudice to rights of both the parties.
5. The matter is kept for further hearing on 22.10.2018. The parties shall complete the pleadings by 17.10.2018.
6. The Registry shall inform the port authorities of Jafrabad as well as Alang about this order today itself."
3. Present application is filed for further clarification.
4. Having heard learned counsel for the parties, it is provided that the applicant shall be permitted to ground the defendant Vessel in cold stag (ground) at Alang Port. The applicant is also permitted to detach the tug and the tug is Page 2 of 7 C/AS/41/2018 IA ORDER not part of the arrest. The defendant Vessel may be kept in cold stag in such a manner that it can stand without tug and can be retrieved as and when required.
5. With the above clarification, present application stands disposed of. The port authorities are directed to do needful.
Direct Service is permitted today."
4. By this application, the applicant has prayed for the following prayer :
"A. That the Hon'ble Court be pleased to pass an order permitting release of vessel DV DALE IMO No.8917792 and the Applicant's statement recorded in order dated 06.10.2018 passed by this Hon'ble Court and permitting beaching, breaking, dismantling, sale etc. of the vessel upon the applicant herein depositing an amount of USD 13,79,909.44 before this Hon'ble Court without prejudice to all its rights, contentions and defences and the right of the applicant to seek withdrawal of the amount deposited on various grounds;
B. xxx"
5. Mr.Mihir Thakore, learned counsel for the applicant relying upon the particulars of the claim of the suit contended that, Item Nos.1 and 3 are the only relevant items and the applicant is ready and willing to furnish bank guarantee of nationalized bank in U.S dollar to protect the interest of the plaintiff and on that ground, it was contended that present application be allowed as prayed for in para 7(A). It was further contended that as far as Item Nos.3, 4 and 5 are concerned, the same relate to costs and interest after the order inorigin was passed by the Court in England and therefore, they are subject to the decree in the suit. Referring to the award, it was contended by Mr. Thakore that even as per Page 3 of 7 C/AS/41/2018 IA ORDER award, Item Nos.4 and 5 of the statement of claim are at least not included.
6. Per contra, Mr. Soparkar, learned counsel for the respondents has submitted that item No.2 is part of the interest from the date of filing of the suit till the date of the award and therefore, it was contended that the security, if any, permitted to be furnished should include the said item as well. It was also contended that item No.4 relates to the costs that was incurred by the plaintiff in the Courts at England. It was further submitted that as far as the claim raised in the suit is concerned, is also with running interest as provided under the award and therefore, even that should be part of the security if the same is accepted by this Court.
7. Having heard learned counsel for the parties and considering particulars of the claim and para 2 of the order of High Court of Justice, Queens Bench Division dated 14.07.2016 and the particulars of the claim, item Nos.1, 2 and 3 in particulars of the claim are basic clam raised by the opponents. Therefore, if the plaintiff is pressing prayer 7(A) of the application, the applicant is bound to secure the said amount. For further clarification, it is stated that as per the particulars of the claim, the same are as Page 4 of 7 C/AS/41/2018 IA ORDER under in US dollar:
Sr. Particulars Amount (In USD) No. 1 Principal claim in the terms of 1, 379, 909.44 Award dated 14.07.2015 passed by the High Court of Justice Queens Bench Division, Commercial Court on 14.07.2016 2 Legal cost in the terms of 72, 628.29 Award dated 14.07.2015 passed by the High Court of Justice Queens Bench Division, Commercial Court on 14.07.2016 3 Interest till date of filing 383, 887 the suit i.e. 05.10.2018 in the terms of Award dated 14.07.2015 passed by the High Court of Justice Queens Bench Division, Commercial Court on 14.07.2016 Total 1, 836, 424.73 Thus, total amount would come to USD 1,836,424.73.
8. Having heard learned counsel for the parties, in opinion of this Court, interest of respondent No.1 orig. plaintiff can be protected if the applicant is asked to furnish bank guarantee of nationalized bank amounting to USD 1,836,425. As far as the contention raised by Mr. Soparkar, learned Senior Counsel for the respondents is concerned, it requires to be noted that the respondent No.1 Orig. Plaintiff also need to be protected during pendency of the suit.
Page 5 of 7C/AS/41/2018 IA ORDER 9. In the facts of the case, the applicant
through its Directors, who are citizens of India, shall file their individual undertaking before this Court in relation to the claim raised in Item Nos.4 and 5 as well as running interest as per the principal claim in the suit. Such undertakings shall be filed before this Court latest by 23rd October, 2018. Accordingly, the applicant shall furnish bank guarantee of nationalized bank amounting to USD 1,836,425, latest by 23rd October, 2018. On such bank guarantee having been filed and the undertakings of Directors, who are the citizens of India, having been been filed, the applicant is permitted for release of the defendant Vessel DV DALE IMO No.8917792 and is further permitted to deal with the same in accordance with law. It is further contended that in order to verify the credentials of individual Directors, who are to file their undertakings as per this order, the applicant shall also produce a list of the properties owned by such Directors for perusal of this Court latest by 22nd October, 2018. This order shall operate only after the same is submitted to this Court. Registry is directed to act accordingly after verification of the fact that all the three requirements as provided by this order are complied with by the applicant. It Page 6 of 7 C/AS/41/2018 IA ORDER goes without saying that deposit of bank guarantee and undertakings would be without prejudice to the rights of all the parties in the suit.
With the above observations and direction, present Civil Application stands disposed of.
Direct Service is permitted today.
(R.M.CHHAYA, J) SUCHIT Page 7 of 7