Calcutta High Court
V.K.Udyog Limited vs The Owners & Parties Int. In The Vessel on 8 July, 2008
Author: Patherya
Bench: Patherya
GA No. 2123 of 2008
AS No. 4 of 2008
IN THE HIGH COURT AT CALCUTTA
Admiralty Jurisdiction
ORIGINAL SIDE
V.K.UDYOG LIMITED Plaintiff/Petitioner/Applicant
Versus
THE OWNERS & PARTIES INT. IN THE VESSEL Defendant/Respondent
M.V.EUGENIE For Plaintiff/Petitioner : MR. TILOK BOSE For Defendant/Respondent : MR. RATNANKO BANERJEE BEFORE:
The Hon'ble JUSTICE PATHERYA Date : 8th July, 2008.
The Court : The Time Charterer being the party interested in vessel M.V. Eugenie has sought for vacating the order of arrest dated 4th July, 2008 and is ready and willing to furnish security to sail the vessel.
According to counsel for the Time Charterer, the plaintiff's pleadings in paragraph 12 of the plaint ought to be considered. The claim is on three grounds, the first being the 15% customs duty payable after 13th June, 2008 aggregating to US$ 2,07,900, expenses incurred for shifting of goods aggregating to Rs. 23,10,000/- and loss of interest assessed at Rs. 9,00,000/-. The first amount will have to be paid by the plaintiff as per Sections 16 and 51 of the Customs Act, 1962 and cannot be a liability which may arise due to inaction of the respondent, Time Charterer. Similarly, shifting of goods cannot be quantified at Rs. 23,10,000/- as the maximum amount which will be incurred is approximately Rs. 8 lakhs. Loss of interest ought not to be considered at this stage. No copy of the notification or the shipping bill has 2 been disclosed in the plaint or the affidavit of arrest and therefore except for the sum of Rs. 8 lakhs, no further sum be directed to be deposited by the respondent, Time Charterer.
Counsel for the plaintiff submits that a caveat was lodged under Rule 27 of the Admiralty Rules of this High Court and under Rule 28 of the Admiralty Rules of this Court an undertaking is to be given and amounts furnished as security. Therefore, the sums set out in paragraph 12 must be accepted as correct and security furnished in respect thereof. The Court is to examine whether a reasonably arguable case has been made out and if it is found that such a case exists then the sums pleaded in the plaint be secured. For the said proposition, reliance has been placed on a judgment reported in AIR 1996 SC 516 and AIR 1999 Calcutta 64. For all the said reasons, sums mentioned in the plaint be secured.
Counsel for the Time Charterer in reply submits that the plaintiff be directed to give an undertaking in case it is found that the arrest was wrongful and orders sought is without prejudice to its rights and contentions that the suit is not maintainable.
Having considered the submissions of the parties, the Time Charterer being a party interested in vessel M.V. Eugenie is directed to furnish security of Rs. 1 crore in cash and for such purpose Mr. Asit Dey, advocate and Mr. Ashim Kr. Basu, advocate are appointed Joint Special Officers. The remuneration of the Joint Special Officers will be decided at a later date. The Joint Special Officers are directed to deposit the said amount in a short term Fixed Deposit Account with any nationalised bank. Upon deposit of such sums, the order of arrest shall stand vacated and vessel M.V. Eugenie will be entitled to sail out of the territorial waters of India. As the Time Charterer is not in a position to load the cargo, it is made clear that the cargo already loaded will be off-loaded by the Time Charterer before sailing out. Such off- loading be effected in the presence of the plaintiff's representative, surveyor 3 and Port Trust Authorities. Counsel for the Time Charterer waives service of the Writ of Summons.
This order is passed as the Shipping Bill was filed on 12.6.2008 i.e. a day prior to the date when the Notification came into effect. The cargo could not be loaded by the master of the vessel as the cranes were defective. No alternative arrangement was made either. No documents have been produced to refute the claim of the plaintiff pleaded in paragraph 12 of the affidavit of arrest. The Time Charterers are a foreign party so also the vessel is a foreign ship. Once the vessel leaves the territorial waters of India it may not be possible to realise sums and the same may be prejudicial to the interest of the plaintiff. On the other hand upon production of proper documents the Time Charterers can always seek modification of the security amount. Therefore considering the balance of convenience and inconvenience it would be just and proper in the present facts that the security of Rs. 1 Crore be furnished by the Time Charterer.
Marshall, Time Charterer, Master of the vessel Port Trust authorities, Customs authorities, Joint Special Officers, and all parties to act on a signed xerox copy of this order on the usual undertakings.
(PATHERYA, J.) TR/