Calcutta High Court
Purti Vanaspati Pvt Ltd vs The Owners & Parties Interested In The ... on 8 July, 2016
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
TA No.40 of 2016
With
AS No.2 of 2016
IN THE HIGH COURT AT CALCUTTA
ADMIRALTY Jurisdiction
ORIGINAL SIDE
PURTI VANASPATI PVT LTD.
Versus
THE OWNERS & PARTIES INTERESTED IN THE VESSEL M.T.FENG HAI 21
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 8th July, 2016.
Appearance:
Mr. K.R. Thakkar, Adv.
The Court: The plaintiff entered into a contract on 13th April, 2016 with one Glencore Singapore Pte. Ltd. for purchase of 1500 mt. of RBD Palm Olein (edible grade) in bulk at a price to be subsequently fixed. On 15th April, 2016 the Seller nominated the vessel MT Feng Hai 13 or substituted for carriage of the goods under the contract with laycan given of 24th April, 2016. Thereafter the price of the goods was finalized at USD 747 per MT. The seller issued its contract note dated 20th April, 2016. The plaintiff also open a Letter of Credit dated 27th April, 2016 in favour of the seller for the value of USD 1,120,500. The plaintiff contends that the entire voyage could not take more than six days and accordingly, between 21st April, 2016 and 27th April, 2016, the plaintiff entered into 14 (fourteen) several contracts for sale of the cargo purchased by it from the 2 seller with its domestic buyers at different rates aggregating to Rs.9,12,64,290/- for the entire cargo. The seller shipped an aggregate quantity of 1449.824 MT. of RBD palm olein in terms of the contract. The defendant is the carrier. The original Bills of Lading are in possession of the plaintiff. The seller raises a commercial invoice on 4th May, 2016 on the plaintiff for a sum of USD 1,120,368.53/- (equivalent to Rs.7,46,38,951/-) and has obtained payment thereof under the letter of credit dated 27th April, 2016. Consequently, all the six several Bills of Lading have been endorsed in favour of the plaintiff on 19th May, 2016 and the plaintiff is the holder in due course thereof upon payment of valuable consideration.
On 12th May, 2016 a purported Notice of readiness was tendered on behalf of the said vessel by the agents, Sea Port Services Pvt. Ltd. alleging, inter alia, that the said vessel arrived at Sandheads (within the territorial limits of Budge Budge) on 11th May, 2016. The plaintiff petitioner contends that the said notice of readiness is invalid and has not been accepted by the plaintiff. Subsequently, the agent informed by an email dated 18th May, 2016 that the said vessel was expected to berth at Budge Budge Jetty on 19th May, 2016. The said vessel did not berth at Budge Budge Jetty on 19th May, 2016. The plaintiff may enquiries with the said agent about the delay in the arrival of the said vessel. The plaintiff was informed that the said vessel was suffered a breakdown of her main engine turbo charger on 19th May, 2016 and was undergoing repairs. The plaintiff made enquiries from time to time about the arrival of the said vessel but was informed that she was undergoing repairs of the main engine turbo charger and would 3 berth shortly. After more than a month, on 22nd June, 2016, the said agent sent an email forwarding an email received from the Master of the vessel purporting to declare General Average. The plaintiff contends that the alleged breakdown of the main engine of the turbo charger of the said vessel was a result of a breach of duty by the defendant to exercise due diligent to make the said vessel seaworthy before and at the beginning of the voyage.
The defendant alleged that the defendant had incurred expenses for repairs of the main engine turbo charger and demanded for general average contribution as a condition precedent for release of the cargo. The defendant has refused to discharge and/or delivery of the cargo of the plaintiff carried under the said bills of lading if the plaintiff fails to furnish a General Average Bond in the form provided by the General Average Adjuster appointed by the defendant. The plaintiff contends that the expenses alleged to have been incurred by the defendant for repairs of the main engine turbo charger are routine expenses which have been incurred in the normal course of events of operating the said vessel. In any event, the alleged expenses have been incurred solely due to failure on the part of the defendant to exercise due diligence to make the said vessel seaworthy.
It appears that the plaintiff is the holder in due course of the bill of lading and is entitled to delivery of the said cargo. The defendant due to engine breakdown which occurred at the anchorage was unable to deliver the said cargo to the plaintiff. The said vessel appears to have been anchored at Diamond Harbour. The plaintiff apprehends that in the event the said vessel is allowed to 4 leave the shore after repairing without delivery of the cargo, the plaintiff would suffer irreparable loss and prejudice.
Under such circumstances, there shall be an order in terms of prayer (a) of the Notice of Motion. The Customs, Port and coast guard Authorities shall act on the basis of a communication of the Marshal. The Marshal shall act on the basis of this order.
The matter is made returnable on 15th July, 2016.
(SOUMEN SEN, J.) sp/