Gujarat High Court
Essar Shipping Limited vs Aquavita International S.A. & on 12 August, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
O/OJCA/537/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (OJ) NO. 537 of 2015
In ADMIRALITY SUIT NO. 23 of 2015
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ESSAR SHIPPING LIMITED....Applicant(s)
Versus
AQUAVITA INTERNATIONAL S.A. & 1....Respondent(s)
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Appearance:
MR PRATAP, SENIOR COUNSEL WITH MR AS VAKIL, ADVOCATE for
the Applicant(s) No. 1
MR MIHIR THAKORE, SENIOR COUNSEL WITH MS PAURAMIB SHETH,
ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 12/08/2015
ORAL ORDER
1. The applicant - a company, registered under the provisions of the Companies Act, 1956 and having registered office in Gujarat, has filed this application inter alia stating that the applicant is the original owner of the defendant vessel. In this application the applicant has prayed for following reliefs:
"a) that this Hon'ble Court be pleased to vacate or set aside the Order of Arrest of the Defendant vessel M.V.TUHINA dated 28th July 2015.
b) that pending the hearing and final disposal of the application, this Hon'ble Court be pleased to permit the Defendant vessel M.V.TUHINA to proceed under arrest from the port of Hazira to the port of Page 1 of 41 HC-NIC Page 1 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER Kattuplli, Tamil Nadu and thereafter perform such other coastal voyages from time to time within India and not proceed to any port outside India without prior permission of this Hon'ble Court.
c) that the Hon'ble Court be pleased to order and direct the Plaintiff to pay to the Applicant a sum of USD 9,000.00 equivalent to Rs.5,76,000.00 per day plus a further sum of Rs.1,26,000.00 per day, for each day of detention of the Defendant vessel as damages or compensation for wrongful arrest of the Defendant vessel.
d) that pending the hearing and final disposal of the application, the Plaintiff be ordered and directed to deposit in this Hon'ble Court a sum of USD 9,000.00 equivalent to Rs.5,76,000.00 per day plus Rs.1,26,000.00 per day, for each day of detention of the vessel commencing from 28th July 2015 till the date the vessel is released and/or permitted to sail.
e) ad-interim relief in terms of prayer
(b) and (d) above.
f) for costs of the Application."
2. The factual matrix of the present case is as under:
2.1. The present opponent - original plaintiff has filed Admiralty Suit No.23 of 2015 by invoking the admiralty jurisdiction of this Court in which the plaintiff has prayed that the defendants be ordered and directed to pay to the plaintiff a principal sum of USD 601,026.84 along with Page 2 of 41 HC-NIC Page 2 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER interest at the rate of 12% per annum from the date of the suit till its realization along with cost of proceedings at USD 30,000/-. It is also prayed in the said suit that the defendant vessel M.V.TUHINA together with her hull, engines, gears, tackles, bunkers machinery, apparel, plant, furnitures, fixtures, appurtenances and paraphernalia, be arrested.
2.2. The plaintiff has averred in the plaint that the plaintiff is in the business of shipping and charters vessels and the same is incorporated under the laws of Marshall Island. The defendant vessel is flying the flag of India and her registered owner is one Essar Shipping Ltd.
(present applicant). The vessel is lying at port Hazira. The defendant vessel is sister vessel of M.V.KIRAN which is owned by the same owner i.e. Essar Shipping Limited (present applicant). The suit is filed for recovery of the amount due to the plaintiff on the redelivery of M.V.KIRAN, sister vessel of the defendant vessel.
2.3. The plaintiff has narrated in the plaint how the plaintiff is entitled to claim the amount prayed for in the suit from the defendant vessel and its owner. The plaintiff has averred in para 14 and 15 as under:
"14. The plaintiff has made the enquiry and thereupon has learnt from reliable Page 3 of 41 HC-NIC Page 3 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER sources that the Defendant vessel is presently at Hazira and likely to sail away immediately upon discharging of the cargo. Hence an ad interim order of arrest of the Defendant vesssel is necessary, failing which grave and irretrievable loss and injury will be caused to the Plaintiff. In the absence of an order of arrest, the Plaintiff's suit will be rendered infructuous as there are no assets within India, other than the Defendant vessel, which the Plaintiff can look to for satisfaction of its claim against the owner of the Defendant vessel. Moreover, there is no other equally alternative efficacious remedy available to the Plaintiff.
15. The plaintiff therefore submits that the arrest of the Defendant vessel is the only manner in which the Plaintiff's maritime claim against the owner of the Defendant vessel can be secured, failing which any decree or Award passed against the Defendant will be impossible to execute."
2.4. The plaintiff has also averred in para 20 of the plaint as under:
"20. The owner of the vessel is not residing within the jurisdiction of this Hon'ble Court and hence it has no movable or immovable property within the jurisdiction of this Hon'ble Court......"
2.5. This Court passed an ex-parte order on 28.07.2015 by which the Port Officer and the Customs Authority at port Hazira were directed to arrest the defendant vessel M.V.TUHINA lying at Page 4 of 41 HC-NIC Page 4 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER port Hazira and to keep the vessel under arrest until further order of this Court.
3. The applicant, therefore, has filed this application inter-alia praying for aforesaid various relief/s. However, it is clarified at this stage that learned counsel for the applicant has requested this Court that at present this Court may consider the request made in para 52(b) and in alternative 52(d) during the pendency of this application. Thus, at present, the learned counsels for the parties have confined their arguments with regard to the aforesaid prayers only.
4. Heard learned Senior Counsel Mr. Pratap with learned advocate Mr. Apurva Vakil for the applicant - original defendant and learned Senior Counsel Mr. Mihir Thakore with learned advocate Ms Paurami B. Sheth for the opponent - original plaintiff.
5. Learned counsel for the applicant at the outset submitted that the plaintiff has obtained an ex-parte order of arrest of the defendant vessel by suppressing material facts from this Court and the plaintiff has made certain false and incorrect statements in the plaint. Learned counsel referred to the averments made in para 14 Page 5 of 41 HC-NIC Page 5 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER of the plaint and submitted that the said averments are incorrect. The applicant is a public limited company incorporated under the Companies Act of 1956 and is the owner of substantial assets including about 14 ships of various sizes. List of the said ships is produced at Exhibit 1 on page 26 of the compilation. Thus, learned counsel submitted that the averments made in the plaint that the applicant has no assets and the plaintiff's alleged claim will be defeated if the vessel is permitted to sail, is nothing but an incorrect statement, and therefore, only on this ground prayer made in para 52(b) of this application be allowed at this stage during the pendency of this application.
6. Learned counsel for the applicant thereafter pointed out that Charter Party Contract dated 11.11.2014 was entered into between the plaintiff as Charterers and the applicant as Owner of the vessel M.V.KIRAN flying the flag of India for carriage of cargo of iron-ore in bulk from Yuzhniy in the Black Sea to a port in China. The vessel of the applicant M.V.KIRAN loaded the cargo of 1,69,208.911 m.t. of iron ore at the port of Yuzhniy and sailed on or about 24th December 2014 for the port of discharge in China. The cargo was loaded at the instructions of and for the benefit of the plaintiff who were the Page 6 of 41 HC-NIC Page 6 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER charterers and in compliance with the applicant's obligation under the charter party. After the vessel sailed from Yuzhniy, she suffered a breakdown and damage. Hence, salvage assistance was called for by the applicant. A part of cargo was off-loaded from the vessel and the vessel was able to proceed on its own power to the port of Dubai. Thereafter, the said vessel M.V.KIRAN was required to carry out repairs after arrival at Dubai port. However, in order to comply with their obligation to deliver the cargo at the port of discharge in China, the applicant arranged for two other ships to transport the cargo from Dubai to China at the cost of the applicant. Learned counsel at this stage submitted that the transshipment of the cargo was done with the notice to and knowledge of the plaintiff and their London's Solicitor. Learned counsel submitted that after the transshipment and the delivery of the cargo was completed, applicant became entitled to be remunerated under the charter party. However, surprisingly the plaintiff has, by communication dated 21.07.2015, informed the present applicant to make the payment as stated in the said communication. The applicant has, therefore, immediately gave the reply and within a period of 7 days the Admiralty Suit is filed before this Court.
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7. Learned counsel for the applicant in the
background of the aforesaid broad facts of the case has mainly contended that the admiralty jurisdiction of this Court cannot be invoked by the plaintiff for the arrest of the vessel which is flying Indian Flag. Learned counsel would contend that this Court is not having jurisdiction to entertain this admiralty suit, and therefore, only on this ground, this suit is required to be dismissed. In support of the said contention, learned advocate has placed reliance upon the decision rendered by the High Court of Calcutta in the case of Porto Maina Maritime Sa v Owners & Parties Interested in The Vessel M.V.Gati Majestic, reported in AIR 2014 (Calcutta) page 47. Learned counsel has mainly placed reliance upon the observations made by the said Court in paragraph 18 to 21, which read as under:
"18. This Court, however, is in respectful disagreement with the view expressed by the learned Single Judge of the Bombay High Court in Crown Maritime Co. (I) Ltd.'s case (supra). Although M.V.Elisabeth has been extensively referred to and relied on by the learned Single Judge, a significant and categorical observation made by the Supreme Court in M.V.Elisabeth has not been taken notice of in the judgment. In paragraph 83 of M.V.Elisabeth, the Supreme Court has clearly observed as follows:-
"The admiralty jurisdiction of the High Page 8 of 41 HC-NIC Page 8 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER Court is dependent on the presence of the foreign ship in Indian waters and founded on the arrest of the ship." (emphasis supplied by this Court)
19. The above observation of the Supreme Court makes it categorically clear that it is only the presence of a "foreign ship"
in Indian waters, which determines the attraction of Admiralty Jurisdiction of the High Court. It can, therefore, be held that the observations made by the Supreme Court in M.V.Elisabeth as referred to by the Bombay High Court in Crown Maritime Co. (I) Ltd.'s case (supra) cannot be an authority for the proposition that a High Court, in its Admiralty jurisdiction, has the power to entertain, try and determine an action against an Indian flag flying vessel.
20. In view of the enunciation of the principle for attracting Admiralty jurisdiction of the High Court-as observed by the Supreme Court in paragraph 83 of its judgment rendered in M.V.Elisabeth, (quoted hereinabove)-there remains no manner of doubt, whatsoever, that it was not open to the plaintiff to invoke the Admiralty jurisdiction of this Court in respect of an action against M.V.Gati Majestic, being an Indian flag flying vessel registered under the Indian Laws.
21. In such circumstances, the concerned department is directed to de-register the plaint together with all interlocutory applications, forthwith. The plaintiff, however, is at liberty to approach a Court of competent Civil jurisdiction for instituting the suit, afresh, urgent Photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis."
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8. Learned Senior Counsel Mr. Pratap for the
applicant has, thereafter, placed reliance upon the decision rendered by the High Court of Kerala in the case of Chembolaparambu General Engineers Pvt. Ltd. v. M.V.Kavarathi, reported in 2014 (4) KLT 237. The Court has observed and held in para 30, 35 and 36 as under:
"30. From all the above, it is evident that what is contemplated under Admiralty Jurisdiction of a High Court in India is only with regard to the arrest of a foreign ship happens to be in Indian waters. When it is confined to a foreign ship happens to be in Indian waters, any ship owned by the President of India or the Union of India, or by a Indian Company incorporated or situated in India or by a partnership firm in India or even by a citizen in India cannot be arrested by invoking the admiralty jurisdiction of any High Courts in India.
xxxx
35. From all the above it can safely be concluded that the admiralty jurisdiction of this Court cannot be extended to the matters in controversy in this suit. The questions involved in this suit are questions which arise from a contract for the repair works of an Indian ship by the plaintiff. It does not involve any jurisdiction for the arrest of such an Indian ship. In the absence of any such enabling provision for the arrest of an Indian ship by an Indian Court, this Court cannot exercise the admiralty jurisdiction Page 10 of 41 HC-NIC Page 10 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER of this Court in this matter.
36. It has to be concluded that the ship in question being an Indian ship owned by the President of India, cannot be subjected to the Admiralty Jurisdiction of this Court. Therefore, the suit as such cannot be entertained in the admiralty jurisdiction of this Court. The plaintiffs are not entitled to get an order for arrest as prayed for. This suit is merely an ordinary money suit which is triable by an ordinary civil Court competent to try it. As per Section 15 of the Code of Civil Procedure, 1908 every suit shall be instituted in the Court of lowest grade competent to try it. Matters being so, this suit ought to have been instituted as an original suit before the concerned Subordinate Judge's Court. Even though this Court has unlimited original jurisdiction also, on the basis of the principles contained in Section 15 of the C.P.C., the plaint has to be returned under Order VII R. 10 C.P.C., to be presented to the Court in which the suit should have been instituted.
In the result, I.A. 908 of 2014 is dismissed and I.A.No.1017 of 2014 is disposed of by ordering the plaint in this suit to be returned under Order VII R. 10 C.P.C. to be presented to the Court in which the suit should have been instituted."
9. Learned counsel for the applicant has, thereafter, placed reliance upon the another decision rendered by the High Court of Kerala in the case of Fithaly Fernando v. Principal Officer and Shipping Master, reported in (2010) 3 KLT 741.
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In the said decision, the Court observed and held in para 2, 5 and 7 as under:
"2. The 4th respondent fiercely opposes the Writ Petition controverting the contentions of the petitioner including the claim of the petitioner for wages itself. But, as far as this Court is concerned, this Court is only expected to decide the question as to whether this Court has jurisdiction to direct arrest and detention of the ship for securing the claim of the petitioner. The 4th respondent would contend that the admiralty jurisdiction of the High Court does not extend to Indian vessels in the matter of arrest and detention. That is why that jurisdiction has been specifically conferred by statute as contained in S. 443 of the Merchant Shipping Act, which also is confined to a foreign ship and not an Indian ship. I am not detailing the other contentions of the 4th respondent in this judgment insofar as according to me, that does not arise for consideration in the context of the jurisdiction of this Court in this Writ Petition.
xxx xxx xxx
5. As I have already stated, the issue involved in this case is in a narrow compass to the extent of deciding whether this Court can invoke its admiralty jurisdiction to arrest and detain an Indian vessel for securing a seaman's wages.
xxx xxx xxx
7. Therefore, I am satisfied that this Court cannot invoke its admiralty Page 12 of 41 HC-NIC Page 12 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER jurisdiction for the purpose of arrest and detention of the above said vessel for the purpose of securing the claim of the petitioner for seaman's wages. For that reason this Writ Petition is liable to be dismissed."
10. Learned counsel for the applicant thereafter has placed reliance on the decision rendered by the Hon'ble Supreme Court in the case of M.V.Elisabeth And Others v. Harwan Investment And Trading Pvt. Ltd., reported in 1993 Supp(2) SCC
433. Learned counsel has mainly placed reliance upon the observations made by the Hon'ble Supreme Court in para 47, 64, 82 and 92 of the said decision, which read as under:
"47. Merchant ships of different nationalities travel from port to port carrying goods or passengers. They incur liabilities in the course of their voyage and they subject themselves to the jurisdiction of foreign States when they enter the waters of those States. They are liable to be arrested for the enforcement of maritime claims, or seized in execution or satisfaction of judgments in legal actions arising out of collisions, salvage, loss of life or personal injury, loss of or damage to goods and the like.
They are liable to be detained or confiscated by the authorities of foreign States for violating their customs regulations, safety measures, rules of the road, health regulations, and for other causes. The coastal State may exercise its criminal jurisdiction on board the vessel for the purpose of arrest or investigation Page 13 of 41 HC-NIC Page 13 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER in connection with certain serious crimes. In the course of an international voyage, a vessel thus subjects itself to the public and private laws of various countries. A ship travelling from port to port stays very briefly in any one port. A plaintiff seeking to enforce his maritime claim against a foreign ship has no effective remedy once it has sailed away and if the foreign owner has neither property nor residence within jurisdiction. The plaintiff may therefore detain the ship by obtaining an order of attachment whenever it is feared that the ship is likely to slip out of jurisdiction, thus leaving the plaintiff without any security.
xxx xxx xxx
64. Where statutes are silent and remedy has to be sought by recourse to basic principles, it is the duty of the court to devise procedural rules by analogy and expediency. Actions in rem, as seen above, were resorted to by courts as a device to overcome the difficulty of personal service on the defendant by compelling him to enter appearance and accept service of summons with a view to furnishing security for the release of the res; or, in his absence, proceed against the res itself, by attributing to it a personality for the purpose of entering a decree and executing the same by sale of the res. This is a practical procedural device developed by the courts with a view to rendering justice in accordance with substantive law not only in cases of collision and salvage, but also in cases of other maritime liens and claims arising by reason of breach of contract for the hire of vessels or the carriage of goods or Page 14 of 41 HC-NIC Page 14 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER other maritime transactions, or tortious acts, such as conversion or negligence occurring in connection with the carriage of goods. Where substantive law demands justice for the party aggrieved, and the statute has not provided the remedy, it is the duty of the court to devise procedure by drawing analogy from other systems of law and practice. To the courts of the "civil law countries" in Europe and other places, like problems seldom arise, for all persons and things within their territories (including their waters) fall within their competence to deal with. They do not have to draw any distinction between an action in rem and an action in personam.
xxx xxx xxx
82. The admiralty jurisdiction of the High Court is dependent on the presence of the foreign ship in Indian waters and founded on the arrest of that ship. This jurisdiction can be assumed by the concerned High Court, whether or not the defendant resides or carries on business, or the cause of action arose wholly or in part, within the local limits of its jurisdiction. Once a foreign ship is arrested within the local limits of the jurisdiction of the High Court, and the owner of the ship has entered appearance and furnished security to the satisfaction of the High Court for the release of the ship, the proceedings continue as a personal action.
xxx xxx xxx
92. Once a foreign ship is arrested in Indian waters by an order of the High Page 15 of 41 HC-NIC Page 15 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER Court, in exercise of the admiralty jurisdiction vested in it by statute, or inherent in it as a court of record, in respect of any maritime claim against its owner, wherever the cause of action may have arisen, and whether or not the ship is subsequently released by the owner furnishing security, proceeding must continue against the owner as in any other suit. The arrest of the vessel while in Indian waters by an order of the concerned High Court, as defined under the Merchant Shipping Act, 1958[section 3(15)] attracts the jurisdiction of the competent court to proceed with the trial, as in the case of any other suit, as an action against the owner, and any decree obtained by the plaintiff is executable against any property of the owner available within jurisdiction, including the security furnished by him for release of the vessel."
11. Relying upon the aforesaid observations made by the Hon'ble Supreme Court, learned Senior Counsel for the applicant submitted that the admiralty jurisdiction of the High Court is dependent on the presence of the foreign ship in Indian waters and founded on the arrest of that ship. The Hon'ble Supreme Court has further observed that once a foreign ship is arrested in Indian waters by an order of the High Court, in exercise of admiralty jurisdiction vested in it by statute, or inherent in it as a Court of record, in respect of any maritime claim against its owner, wherever the cause of action may have Page 16 of 41 HC-NIC Page 16 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER arisen, and whether or not the ship is subsequently released by the owner furnishing security, proceedings must continue against the owners in any other suit. Learned counsel therefore submitted that the question before the Hon'ble Supreme Court was with regard to the arrest of a foreign ship in the Indian territorial waters and whether the High Court can exercise admiralty jurisdiction or not. In the present case, the defendant vessel is flying the flag of India and the applicant is the registered owner of the said vessel.
12. Learned counsel further submitted that the undertaking given by the plaintiff can be said to be a paper undertaking. The said undertaking is given by one Mr. Rohit Parmar, constituted attorney of the plaintiff. The plaintiff is not having residence or business in India. Therefore, if the suit of the plaintiff is dismissed by this Court, it is difficult to recover the amount of the loss which will be caused to the defendant from the plaintiff. Therefore, the plaintiff be directed to furnish security before this Court and to deposit an amount before the Registry of this Court. Learned counsel referred to the relief prayed in para 52(d) of this application and submitted that because of the order of arrest passed by this Court, the defendant is suffering Page 17 of 41 HC-NIC Page 17 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER huge loss every day and therefore if this Court is not inclined to grant prayer (b) at this stage, this Court may grant prayer (d) in the interest of justice.
13. On the other hand, learned Senior Counsel Mr. Mihir Thakore appearing with learned advocate Ms. Paurami B. Sheth for the opponent - original plaintiff has mainly submitted that this Court can exercise its admiralty jurisdiction even for the vessel which is flying the flag of India. Learned Senior Counsel referred to the provisions contained in Section 2(2) of Colonial Courts and Admiralty Act of 1890, which reads as under:
"2. Colonial Courts of Admiralty.-
(1).....
(2) The jurisdiction of a Colonial Court of Admiralty shall, subject to the provisions of this Act, be over the like places, persons, matters, and things, as the Admiralty jurisdiction of the High Court in England, whether existing by virtue of any statute of otherwise and the Colonial Court of Admiralty may exercise such jurisdiction in like manner and to as full and extent as the High Court in England, and shall have the same regard as that Court to international law and the comity of nations."
14. Thereafter, learned counsel has referred Sections 3, 4 and 6 of Admiralty Court Act, 1840, which read as under:
Page 18 of 41HC-NIC Page 18 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER "3. Whenever a vessel shall be arrested, etc., court to have jurisdiction over claims of mortgagees Whenever any ship or vessel shall be under arrest by process issuing from the said High Court of Admiralty, or the proceeds of any ship or vessel having been so arrested shall have been brought into and be in the registry of the said Court, in either such case the said court shall have full jurisdiction to take cognizance of all claims and causes of action of any person in respect of any mortgage of such ship or vessel, and to decide any suit instituted by any such person in respect of any such claims or causes of action respectively.
4. Court to decide question of title, etc. The said Court of Admiralty shall have jurisdiction to decide all questions as to the title to or ownership of any ship or vessel, or the proceeds thereof remaining in the registry, arising in any cause of possession, salvage, damage, wages, or bottomry, which shall be instituted in the said court after the passing of this Act.
xxx xxx xxx
6. The Court in certain cases may adjudicate, etc. The High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever in the nature of salvage for services rendered to or damage received by any ship or sea-going vessel, or in the nature of towage, or for necessaries supplied to any foreign ship or sea-going vessel, and to enforce the Page 19 of 41 HC-NIC Page 19 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER payment thereof, whether such ship or vessel may have been within the body of a county, or upon the high seas, at the time when the services were rendered or damage received, or necessaries furnished, in respect of which such claim is made."
15. Learned counsel thereafter referred to the definition of ship given in Admiralty Court Act, 1861, which provides that:
'ship' shall include any description of vessel used in navigation not propelled by oars.
16. Thereafter, learned counsel referred to the provisions of Sections 4, 5, 6, 7, 8, 10 and 11.3 of Admiralty Court Act, 1861. Learned counsel Mr. Thakore also placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of M.V.Elisabeth And Others (supra). Learned counsel has also referred to Articles 1(2) and 2 of International Convention Relating to the Arrest of Sea-Going Ships, (Brussels 1952) as well as Articles 2 and 3 of International Convention on the Arrest of Ships (Geneva 1999) and submitted that both these conventions are applicable to India.
17. After referring to various provisions of the aforesaid Acts and the decision rendered by the Hon'ble Supreme Court in the case of M.V.Elisabeth And Others (supra), learned counsel submitted that this Court can exercise admiralty Page 20 of 41 HC-NIC Page 20 of 41 Created On Fri Aug 14 13:08:01 IST 2015 O/OJCA/537/2015 ORDER jurisdiction and arrest the vessel flying the flag of India. There is no restriction found nor there is any specific exclusion for exercising admiralty jurisdiction of this Court in any of the aforesaid provisions of the different Act or the conventions. Both the remedies available with the plaintiff either to file a civil suit before the competent civil court or to file admiralty suit before this Court.
18. Learned counsel for the opponent thereafter placed reliance upon the decision rendered by the Bombay High Court in the case of Crown Maritime Co.(I) Ltd. v. Barge Salina II & Ors., reported in (2008) 1 Bom. CR 143, and more particularly the observations made by the Bombay High Court in para 33 to 38, which reads as under:
"33. The Supreme Court has very aptly observed that where Statutes are silent and remedy has to be sought by recourse to basic principles itself, it is the duty of the Court to devise procedural rules by analogy and expediency. The Court observed that it is within the competence of the appropriate Indian Courts to deal, in accordance with the general principles of Maritime Law and the applicable provisions of Statutory law, with all persons and things found within their jurisdiction. The power of the Court is plenary and unlimited unless it is expressly or by necessary implication curtailed.
34. The submission of Mr. Pratap is that there is no such express bar in the 1940 Act or other statutes. The settled Page 21 of 41 HC-NIC Page 21 of 41 Created On Fri Aug 14 13:08:02 IST 2015 O/OJCA/537/2015 ORDER principle is that, unless there is a conflict between the Conventions which have been adopted to which all countries have been signatories and the Municipal Law prevailing in these countries, Convention must be given effect to. That apart, the Supreme Court analyses and restates the well settled principle that the English Statutes and the decisions rendered thereunder would not control the authority, power and jurisdiction of the Indian Courts. Something more is required to take out matters from the purview of these Courts' jurisdiction. The Jurisdiction is plenary and extensive, if there is no curtailment of jurisdiction and remedies which are available to Courts to administer justice, are available to a claimant against a foreign ship and its owners found within the jurisdiction of the concerned High Court.
35. Merely because the observations have been made in the context of the power of arrest of a foreign vessel does not mean that this Court would lose its jurisdiction, merely because the vessel is flying Indian Flag. I am of the opinion that all controversies on this aspect stand concluded as the last word is spoken by the Supreme Court. The Supreme Court in para 66 of its decision very clearly holds that High Courts in India are superior courts of records, they have Original and Admiralty Jurisdiction, they have inherent and plenary powers and unless expressly or impliedly barred and subject to the Appellate or Discretionary Jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction, including jurisdiction to determine their own powers. Such being the Authority and the jurisdiction of this Court as enunciated in the decision of M.V. Elizabeth (supra), Page 22 of 41 HC-NIC Page 22 of 41 Created On Fri Aug 14 13:08:02 IST 2015 O/OJCA/537/2015 ORDER the Supreme Court naturally turned down the request before it to hold that the Andhra Pradesh High Court would have no jurisdiction. It has referred in para 71 to the Geneva Convention on Territorial Sea and in paras 72 and 73 to the Foreign Vessel passing out and in Territorial waters. Thereafter in para 74 this is what is observed:
"74. All foreign merchant ships and persons thereon fall under the jurisdiction of a coastal State as they enter its waters. Subject to the right of 'innocent passage', the coastal State is free to exercise jurisdiction over such ships in respect of matters the consequence of which extend beyond the ships. Such ships are subject to the local jurisdiction in criminal, civil and administrative matters. This jurisdiction is, however, assumed only when, in the opinion of the local authorities, the peace or tranquillity of the port is disturbed, when strangers to the vessel are involved or when the local authorities are appealed to.
Questions which affect only the internal order and economy of the ship are generally left to the authorities of the flag State. Coastal States are entitled to assume jurisdiction in respect of maritime claims against foreign merchant ships lying in their waters. These ships are liable to be arrested and detained for the enforcement of maritime claims. The courts of the country in which a foreign ship has been arrested may determine the cases according to merits, provided they Page 23 of 41 HC-NIC Page 23 of 41 Created On Fri Aug 14 13:08:02 IST 2015 O/OJCA/537/2015 ORDER are empowered to do so by the domestic law of the country or in any of the cases recognised by the International Convention relating to the Arrest of Seagoing Ships, Brussels, 1952.* The maritime claims in respect of which the power of arrest is recognised in law include claims relating to damage caused by any ship either in collision or otherwise; claims relating to carriage of goods in any ship whether by charterparry or otherwise, loss of or damage to goods etc. These principles of international law, as generally recognised by nations, leave no doubt that, subject to the local laws regulating the competence of courts, all foreign ships lying within the waters of a State, including waters in ports, harbours, roadsteads, and the territorial waters, subject themselves to the jurisdiction of the local authorities in respect of maritime claims and they are liable to be arrested for the enforcement of such claims."
36. Although the Supreme Court in para 76 on which reliance is placed by Mr. Narichania has observed that Conventions relied upon by Mr. Pratap are not adopted by Legislature, according to Supreme Court itself, that does not in any way restrict the jurisdiction conferred upon this Court. It is in this context the observations in paras 81 and 82 are made. In para 84 the recognition is granted to the Brussels Convention. In paras 85, 88 and 89 this is what is observed:-
"85. It is important to remember that the Brussels Convention on Arrest of Ships merely restricts or regulates the power of the coastal States and Page 24 of 41 HC-NIC Page 24 of 41 Created On Fri Aug 14 13:08:02 IST 2015 O/OJCA/537/2015 ORDER is not intended to confer power which they did not otherwise have as sovereign States. 'Arrest' to which the convention refers is detention of a ship to secure a maritime claim, and not seizure of a ship in execution or satisfaction of judgment.
88. Admiralty jurisdiction is an essential aspect of judicial sovereignty which under the Constitution and the laws is exercised by the High Court as a Superior Court of record administering justice in relation to persons and things within its jurisdiction. Power to enforce claims against foreign ships is an essential attribute of admiralty jurisdiction and it is assumed over such ships while they are within the jurisdiction of the High Court by arresting and detaining them.
89. All persons and things within the waters of a State fall within its jurisdiction unless specifically curtailed or regulated by rules of international law. The power to arrest a foreign vessel, while in the waters of a coastal State, in respect of a respect of a maritime claim, wherever arising, is a demonstrable manifestation and an essential attribute of territorial sovereignty. This power is recognised by several international conventions. These conventions contain the unified rules of law drawn from different legal systems. Although many of these conventions have yet to be ratified by India, they embody principles of law recognised by the generality of maritime States, and can therefore be Page 25 of 41 HC-NIC Page 25 of 41 Created On Fri Aug 14 13:08:02 IST 2015 O/OJCA/537/2015 ORDER regarded as part of our common law. The want of ratification of these conventions is apparently not because of any policy disagreement, as is clear from active and fruitful Indian participation in the formulation of rules adopted by the conventions, but perhaps because of other circumstances, such as lack of an adequate and specialised machinery for implementation of the various international conventions by coordinating for the purpose the concerned Departments of the Government. Such a specialised body of legal and technical experts can facilitate adoption of internationally unified rules by national legislation. It is appropriate that sufficient attention is paid to this aspect of the matter by the concerned authorities. Perhaps the Law Commission of India, endowed as it ought to be with sufficient authority, status and independence, as is the position in England, can render valuable help in this regard.
Delay in the adoption of international conventions which are intended to facilitate trade hinders the economic growth of the nation."
37. In this behalf, paras 90 and 91 are also eloquent enough. The Supreme Court observes that all persons and things within the waters of the State shall fall within the Court's jurisdiction, unless specifically curtailed or regulated by Rules or International Law. The observations of the Supreme Court cannot be read out of context. The Supreme Court never meant that its observations should be construed so as to take away jurisdiction of the Admiralty Court to Page 26 of 41 HC-NIC Page 26 of 41 Created On Fri Aug 14 13:08:02 IST 2015 O/OJCA/537/2015 ORDER proceed against Indian Flag vessel.
38. Even otherwise, relying upon the Division Bench decision of this Court, to which my attention has been invited by Mr. Narichania and Mr. Pratap, I find nothing in the 1840 Act which would take away the jurisdiction of this Court to proceed against an Indian Flag vessel. There is substance in the contention of Mr. Pratap that the provisions have to be read as a whole and in their entirety. If so read, section 6 of the 1840 Act does not create any bar on this Court's jurisdiction to arrest nor does it restrict its power to arrest an Indian Flag vessel. The provisions cannot be read in the manner suggested by Mr. Narichania. The Legislature intended that all claims and demands are brought within the Admiralty Jurisdiction. The words "Any Ship" and not restricting the powers to its location is indicative of the intent. Even otherwise, after the Authoritative Pronouncement of the Supreme Court in M.V. Elisabeth there should be no doubt about the jurisdiction of this Court. A Division Bench of this Court in a decision reported in 1994 (3) Bom. C.R. 273 : A.I.R 1993 Bom. 286 : 1993 (1) Mh. L.J.463 (CNA Peejay Exports Pvt. Ltd. v. M.V. Nikolay Maksimov and Ors), has held that after this decision of the Supreme Court there is no real distinction between the Ordinary Original Civil Jurisdiction and Admiralty Jurisdiction as contended. Thus, in the absence of any express bar and in the light of clear pronouncement of the Supreme Court, to my mind, there is no substance in the contention of Mr. Narichania on the issue of jurisdiction of this Court."
19. Learned counsel Mr. Thakore thereafter Page 27 of 41 HC-NIC Page 27 of 41 Created On Fri Aug 14 13:08:02 IST 2015 O/OJCA/537/2015 ORDER opposed the grant of interim relief in terms of para 52(b) of the application and submitted that in the present application the applicant has sought interim relief seeking modification of the order permitting the applicants to run the applicant vessel M.V.TUHINA to proceed under arrest from the port of Hazira to the port of Katupalli, Tamilnadu and thereafter perform some other coastal voyages from time to time within India. No details of such future voyages have been provided. Therefore, such type of relief cannot be granted. It is contended that the interim relief prayed for in the application permitting the defendant vessel to travel from one port to another, which even otherwise falls outside the jurisdiction of this Court, while remaining under arrest is nothing but an attempt to circumvent or frustrate the order of arrest granted by this Court. The applicant intends to run the vessel for its commercial purpose without putting security of the suit claim of the plaintiff, which is not permissible under the Admiralty Rules of this Court and also against the principles laid down by the Hon'ble Supreme Court in various judgments. Learned counsel further contended that as per the Admiralty Rules, once the vessel is arrested, the owner or the persons interested in the vessel is entitled to get her released only upon tendering cash security or security in the form of nationalized or scheduled bank or when the arrest is vacated Page 28 of 41 HC-NIC Page 28 of 41 Created On Fri Aug 14 13:08:02 IST 2015 O/OJCA/537/2015 ORDER after hearing the parties.
20. Learned counsel thereafter contended that the proposition suggested by the applicant is on all counts advantageous only to the applicant inasmuch as without putting security of the suit claim the applicant will run the vessel for commercial purpose and earn from the same, whereas, the plaintiff despite getting interim order of the arrest of the vessel will be without any security for its claim and no protection is to be provided to the present opponent - plaintiff in the eventuality of the vessel being the only security is lost and thereby putting the interest of the opponent at disadvantageous position. Hence, the opponent is likely to suffer grate prejudice.
21. Learned counsel for the opponent thereafter submitted that the undertaking is given by a single Director of the applicant company and if the same is breached or violated, the original plaintiff will have no remedy against the defendant vessel. There is no resolution of Board of Directors authorizing the said Director to give an undertaking before this Court and therefore this Court may not accept the undertaking given by the Director of the applicant company. This Court may direct the applicant to furnish security of approximately Rs.3.5 crores for the time being till the Page 29 of 41 HC-NIC Page 29 of 41 Created On Fri Aug 14 13:08:02 IST 2015 O/OJCA/537/2015 ORDER defendant vessel come back to port Hazira and on that condition this Court may grant permission to defendant vessel to sail from Hazira.
22. Learned Senior Counsel Mr. Thakore for the opponent - original plaintiff has placed reliance upon the decision in case of Schwarz & Co. (Grain), Ltd. v. "St. Elefterio" (Owners), (1957) 1 LLOYD'S LIST LAW REPORTS 283 in which it has been held that:
"The fact is, and this is the sanction against abuse, that the plaintiffs, if their alleged cause of action turns out not to be a good one, will be held liable for costs, and those costs will include the costs of furnishing bail in order to secure the release of the ship. The defendants can always secure the release of their ship by the simple expedient of furnishing bail. It is perfectly true that if, as they say it will, the action fails, they will probably not recover inter parties the whole of the costs of furnishing the bail; but in that respect I do not know that they are in any different position from other defendants in other types of action. That observation applies especially in these days of legal aid. There is many a defendant who has been unsuccessfully sued, but who at the end of it all finds himself in the position that he cannot recover the whole of his costs. That is one of the incidents of litigation which, as it seems to me, parties have to accept in modern conditions."
23. Learned counsel Mr. Thakore has thereafter Page 30 of 41 HC-NIC Page 30 of 41 Created On Fri Aug 14 13:08:02 IST 2015 O/OJCA/537/2015 ORDER placed reliance upon the order dated 03.08.2015 passed by the Bombay High Court in Admiralty Suit No.56 of 2015 and submitted that the Bombay High Court has passed an order of arrest of the vessel of the company which is registered under the provisions of the Companies Act, 1956 and therefore when this Court has passed similar order of arrest of the defendant vessel flying the flag of India while invoking admiralty jurisdiction, this Court may not vacate interim relief granted by this Court or modify the same. Learned counsel Mr. Thakore therefore submitted that at this stage this Court may not grant relief prayed for in para 52(b) or alternatively 52(d) as requested by learned counsel for the applicant.
24. Learned Senior Counsel Mr. Pratap submitted in rejoinder that the plaintiff has averred in paragraph 19 of the plaint that the defendant vessel is presently in the port of Hazira. The admiralty jurisdiction of this Court extends throughout the territorial waters of India. Consequently, this Court has jurisdiction to receive, try and dispose of the suit and pass interlocutory orders. Thus, when it is the case of the plaintiff itself that admiralty jurisdiction of this Court extends throughout the territorial waters of India, it is not open for the plaintiff to submit that if the vessel is permitted to sail, move and call at ports out of Page 31 of 41 HC-NIC Page 31 of 41 Created On Fri Aug 14 13:08:02 IST 2015 O/OJCA/537/2015 ORDER Gujarat ports, the arrest of the vessel for such ports will be arrest without jurisdiction.
25. Learned counsel for the applicant has thereafter referred to and relied upon the observations made by the Hon'ble Supreme Court in the case of M.V.Elisabeth And Others (supra) in para 74, 76, 77, 78 and 79 and submitted that the said decision is applicable to a foreign ship only and not against the Indian ship. The Hon'ble Supreme Court was concerned with the Act of 1861.
26. Learned counsel Mr. Pratap thereafter has placed reliance upon the order dated 30.01.2015 passed by this Court in O.J.C.A. No.96 of 2015 in Admiralty Suit No.30 of 2014 and submitted that this Court permitted the concerned defendant vessel to sail under arrest to the outer anchorage of Kandla port from Mundra port.
27. Learned counsel has produced on record the resolution passed by the Board of Directors of the applicant company in a meeting held on 21.05.2015 whereby the Board has given powers and authority to Mr. Anoop Kumar Sharma, whole time Director of the Company designated as Chief Executive Officer of the company, to give an undertaking before the Courts as per clause 13 of the said resolution. The said resolution is taken on record.
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28. I have considered the arguments canvassed by the learned counsels appearing for both the parties. I have also gone through the documents produced on record of this application and also considered the decisions rendered by the Hon'ble Supreme Court as well as other High Courts.
29. Both the learned counsels have submitted at the outset that this Court may not decide the issue of jurisdiction of this Court with regard to the arrest of the vessel flying the flag of India at present though they have made submissions with regard to the jurisdiction of this Court and the said issue be decided later on. However, in the meantime, this Court may only consider the question as to whether the applicant is entitled to get the relief as prayed for in para 52(b) or in alternative para 52(d) of the application. Thus, at present, I am not dealing with all the contentions which are raised and reproduced in this order at length and I am considering the submissions only with regard to the aforesaid reliefs. Thus, at this juncture, the only question which is required to be considered by this Court is as to whether the applicant can be permitted to sail the defendant vessel under the arrest from port Hazira to the port of Katupalli, Tamilnadu and thereafter perform some other coastal voyages from time to time within India or not? If yes, for what period such permission can be granted?
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30. It is the case of the applicant that the plaintiff has made false and incorrect statement in the plaint that the applicant has no assets and it is also alleged in the plaint that the claim of the plaintiff will be defeated if the vessel is permitted to sail. It is further alleged that the plaintiff has failed to make a full and frank disclosure and has suppressed several facts and has also made false statements in the plaint for the purpose of obtaining an ex- parte order. It is further stated by the applicant in this application that plaintiff has made a false statement in para 14 of the plaint that "in absence of an order of arrest, the plaintiff's suit will be rendered infructuous as there are no assets within India, other than the Defendant vessel, which the Plaintiff can look to for satisfaction of its claim against the owner of the Defendant vessel. The plaintiff has further averred in para 20 of the plaint that the owner of the vessel is not residing within the jurisdiction of this Court and hence it has no movable or immovable property within the jurisdiction of this Court. This Court is of the opinion that applicant is prima facie right in contending that the said averments are not accurate and rather incorrect. The applicant has stated on affidavit that the applicant is the company which is registered under the Companies Act, 1956 and is having movable and immovable property within the jurisdiction of this Court.
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It is also on record that the applicant is having 14 ships.
31. This Court, vide order dated 30.01.2015 passed in O.J.C.A. No. 96 of 2015 in Admiralty Suit No.30 of 2014, by way of interim measure, made following arrangement:
"The defendant vessel is permitted to sail under arrest to the outer anchorage of Kandla Port. The Registrar General of this Court shall forthwith depute a responsible officer to go to Mundra Port and bring the defendant vessel to the outer anchorage of Kandla Port. For the sake of convenience, it is made clear that the officer so deputed by the Registrar General will be on Board the vessel in question and the vessel will be under his control for the purpose of implementation of this order. The Coast Guard, Mundra shall also depute an officer to accompany the officer deputed by the Registrar General of this court. The entire cost that will be incurred by the officer deputed by the Registrar General as well as by the Coast Guard shall be borne at the first instance by the defendant, that is, the owners and parties interested in the vessel M. V. CAPE CLIMBER, IMO NO.8906896. All the concerned authorities, namely, the Port authorities at Mundra and Kandla, the Customs authorities and the Coast Guard authorities both at Mundra and Kandla shall provide necessary assistance to the officer deputed by the Registrar General for implementing the above order. The Constituted Power of Attorney who has affirmed the present application shall file an undertaking on behalf of the applicant to the effect that the vessel Page 35 of 41 HC-NIC Page 35 of 41 Created On Fri Aug 14 13:08:02 IST 2015 O/OJCA/537/2015 ORDER would continue to be under arrest and would be duly anchored at the outer anchorage of Kandla Port."
32. The applicant has raised the preliminary objection that the defendant ship is flying the flag of India and therefore this Court cannot exercise admiralty jurisdiction. In the present case, the applicant has placed reliance upon the decision of Calcutta High Court in the case of Porto Maina Maritime Sa (supra) as well as the decisions of Kerala High Court in the cases of Chembolaparambu General Engineers Pvt. Ltd. (supra) and Fithaly Fernando (supra). Whereas, the original plaintiff has placed reliance upon the decision of Bombay High Court in the case of Crown Maritime Co.(I) Ltd. (supra), wherein, the Bombay High Court has held that this Court can pass an order of arrest of the vessel which is flying the flag of India. Thus, till the said issue as to whether this Court is having jurisdiction to entertain the admiralty suit in case of defendant vessel which is flying the flag of India, is decided, an interim order is required to be passed considering the suppression of material facts by the plaintiff at the time of getting an ad-interim order of arrest of defendant vessel and also considering the following peculiar facts and circumstances of the present case.
33. The applicant has stated in para 24 that the Page 36 of 41 HC-NIC Page 36 of 41 Created On Fri Aug 14 13:08:02 IST 2015 O/OJCA/537/2015 ORDER vessel M.V.TUHINA has loaded a cargo of steel plates at Hazira for Essar Steel Ltd., and was about to sail from Hazira when the vessel was arrested on 28th July 2015. The vessel was to proceed to the port of Kattupalli in the State of Tamil Nadu for discharge. After completion of discharge, the said vessel M.V.TUHINA is required to proceed to the port of Visakhapatnam for loading a cargo of iron-ore pellets and bring the same back to Hazira. Thus, the vessel M.V.TUHINA is on a coastal voyage. The applicant further submitted that it is just and equitable and in the interests of justice that the defendant vessel be permitted to proceed on its coastal voyages under arrest as long as it does not proceed to a port outside India. The applicant, through its Director, Mr. Anoop Kumar Sharma has given an undertaking to this Court that the vessel M.V.TUHINA shall not proceed to any port outside India without the permission of this Court and shall only perform coastal voyages for Essar Logistics Ltd. The applicant further submitted that it is a company registered in India with substantial assets in India. The applicant has therefore requested this Court to accept the undertaking given by Mr. Anoop Kumar Sharma, Director of the applicant and permit the defendant vessel M.V.TUHINA to sail under arrest from port Hazira to the port of Kattupalli and thereafter to the port of Visakhapatnam and return back to the port of Hazira and perform Page 37 of 41 HC-NIC Page 37 of 41 Created On Fri Aug 14 13:08:02 IST 2015 O/OJCA/537/2015 ORDER further coastal voyages under arrest without proceeding to any port outside India. The applicant submitted that no prejudice whatsoever would be caused to the plaintiff in the event such permission is granted. On the other hand, substantial loss and injury would be caused to the applicant in the event the vessel continues to remain under arrest at Hazira and a cargo of about 9467 m.t. steel products which is on board is required to be discharged and delivered at the port of Kattupalli.
34. Thus, in view of the fact that the defendant vessel has loaded cargo of steel plates for Essar Steel Ltd. and the said vessel was to proceed to the port of Kattupalli in the State of Tamil Nadu for discharge and thereafter the said vessel was required to proceed to the port of Visakhapatnam for loading a cargo of iron-ore pellets and bring the same back to Hazira and because of the order of arrest of defendant vessel passed by this Court, the applicant - defendant is suffering huge loss to the tune of Rs.7 lakh per day, I am of the opinion that some interim arrangement is required to be made during the pendency of this application.
35. Moreover, it is the case of the plaintiff in para 19 of the plaint that admiralty jurisdiction of this Court extends throughout the territorial waters of India and therefore I am of the opinion Page 38 of 41 HC-NIC Page 38 of 41 Created On Fri Aug 14 13:08:02 IST 2015 O/OJCA/537/2015 ORDER that certain interim arrangement is required to be made in the interest of justice.
36. In view of the aforesaid discussion, by way of interim measure, the order dated 28.07.2015 of arrest of defendant vessel is required to be modified and following order is passed:
(i) The vessel "M.V.TUHINA" of the ownership of the applicant is permitted to sail under arrest from the port of Hazira to the port of Kattupalli, Tamil Nadu and thereafter to the port of Visakhapatnam, Andhra Pradesh and return back to the port of Hazira by 21st September 2015 and during all these time the vessel shall remain under arrest. The said vessel is not permitted to call at any other ports for whatsoever reason and any such deviation shall be regarded as a breach of this order by the applicant.
(ii) The Director of the company shall file another undertaking before the Registry of this Court within a period of three days that aforesaid vessel shall only call at the port of Kattupalli, Tamil Nadu and thereafter to the port of Visakhapatnam, Andhra Pradesh and continue to be under arrest. He shall also undertake that the said vessel will return to Hazira on or before 21st September, 2015 and that the applicant shall not sale or encumber the said vessel during this period.Page 39 of 41
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(iii)The vessel to sail out from the port of Hazira only upon the said undertaking being filed in this Court.
(iv) No application by the applicant or on their behalf shall be made during her voyage from the port of Hazira to the port of Hazira for obtaining port and customs clearance to leave Indian waters.
(v) The applicant's advocate shall advise the respondent's advocate when the vessel sails out from Hazira, arrives at Kattupalli, departs Kattupalli, arrives Visakhapatnam, departs Visakhapatnam and arrives at Hazira.
(vi) The vessel has to adhere to and return to the port of Hazira within 4 weeks from the date it sails out from the port of Hazira, i.e. on or before 21st September 2015.
(vii)The respondent to file their reply to this application by 25th August 2015.
(viii)The applicant to file their rejoinder, if any, within a week from the date of receipt of the reply.
37. It is made clear that this arrangement is by way of interim arrangement and all the rights and contentions of both the parties are kept open and Page 40 of 41 HC-NIC Page 40 of 41 Created On Fri Aug 14 13:08:02 IST 2015 O/OJCA/537/2015 ORDER this Court will decide all the issues at the time of hearing of this application. It is also made clear that if the applicant commits breach of the undertaking or the directions as aforesaid given by this Court, this Court will take serious view of the matter.
38. Direct service upon various ports, customs and other local authorities is permitted.
The application be listed for hearing on 3rd September 2015.
(VIPUL M. PANCHOLI, J.) Jani At this stage, learned advocate Ms. Paurami B. Sheth for the respondent - original plaintiff has requested that this order be stayed for a period of three days so that the respondent - plaintiff can approach before the higher forum. Learned advocate Mr. Apurva Vakil for the applicant has opposed this request. However, I am of the opinion that in the interest of justice this order is required to be stayed up to 19th August 2015. Hence, the implementation and execution of this order is stayed up to 19th August 2015.
(VIPUL M. PANCHOLI, J.) Jani Page 41 of 41 HC-NIC Page 41 of 41 Created On Fri Aug 14 13:08:02 IST 2015