Bombay High Court
North East Organised Floritech Private ... vs M. V. Cma Cgm Cendrillon (Imo 9449819) ... on 20 November, 2021
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
Comasl.26638.21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANJALI Digitally signed
by ANJALI
TUSHAR
ORDINARY ORIGINAL CIVIL JURISDICTION
TUSHAR ASWALE
Date: 2021.11.20
ASWALE 15:42:01 +0530
ADMIRALTY AND VICE ADMIRALTY JURISDICTION
IN ITS COMMERCIAL DIVISION
COMM. ADMIRALTY SUIT (L) NO. 26638 OF 2021
North East Organised Floritech Pvt. Ltd. ..Plaintiff
Vs.
M.V. CMA CGM Cendrillon (IMO 9449819) & Ors. .. Defendants.
Mr. Bimal Rajaseljar a/w Biju Joseph i/b Lloyed & Johnson, for the
Plaintiff.
Mr. Shiv Iyer a/w Mr. Osama Butt, Ms. Adithi Rao i/b Renata
Partners, for Defendant Nos.1 & 2.
CORAM:- B. P. COLABAWALLA,J.
DATE :- NOVEMBER 20, 2021.
P. C.:
The present matter is moved urgently at my residence today seeking release of the 1st Defendant Vessel from the order of arrest passed on 17th November, 2021. The learned advocate for the Defendant Nos.1 & 2 has stated that he has inspected the register for caveat against release at 2:30 pm today and there is no caveat against release of the 1st Defendant Vessel. The said statement is accepted as an undertaking given to this Court.
Aswale 1/5
Comasl.26638.21
2 By the order dated 17th November, 2021, the 1st Defendant Vessel was arrested to secure the claim of the Plaintiff in the sum of Rs.1,36,88,852/- as per the particulars of claim together with further interest @ 18% p.a. on the principal amount from the date of institution of the Suit till payment and/or realization. The arrest of the 1st Defendant Vessel was sought because according to the Plaintiff, not only was their claim a maritime claim as contemplated under Section 4 (1) (f) and (g) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 (for short "the Admiralty Act"), but the at the time of seeking the order of arrest, the 1st Defendant Vessel was at Nhava Sheva Port which is within the jurisdiction of this Court. 3 Today the matter is moved because it is the contention of Defendant Nos.1 & 2 that at the time of passing the order of arrest (at 2.30. p.m. of 17th November, 2021), the 1st Defendant Vessel had already sailed beyond 12 nautical miles from Nhava Sheva Port, and hence, this Court did not have jurisdiction to arrest the 1st Defendant Vessel. In this regard, the learned counsel appearing on behalf of Defendant Nos.1 & 2 relied upon Section 3 of the Admiralty Act.
4 On the other hand, the learned counsel appearing on behalf of the Plaintiff submitted that on an oral application by Defendant Nos.1 Aswale 2/5 Comasl.26638.21 & 2, the aforesaid issue cannot be decided. He submitted that only after Defendant Nos.1 & 2 make an application for vacating the order of arrest and to which the Plaintiff is allowed to respond, that the order of arrest can be vacated or otherwise. He, therefore, submitted that there is no question of allowing the 1st Defendant Vessel to sail today without the Court first deciding whether, in fact, it had jurisdiction or otherwise. 5 I have heard the learned counsel appearing on behalf of the parties at some length. I find considerable force in the arguments canvassed by the learned counsel appearing on behalf of the Plaintiff. The order of arrest was passed at 2.30 p.m. on 17th November, 2021. It is the case of Defendant Nos.1 & 2 that at the said time, the 1st Defendant Vessel had already sailed beyond the jurisdiction of this Court. This is disputed by the Plaintiff. Considering this dispute, it would not be possible to release the 1st Defendant Vessel from arrest today.
6 At this stage, the learned counsel appearing on behalf of Defendant Nos.1 & 2, submitted that Defendant Nos.1 & 2, without prejudice to all their rights and contentions, including challenging the jurisdiction of this Court, is willing to secure the Plaintiff's claim in the sum of Rs.1,36,88,852/- so that the 1st Defendant Vessel can be released Aswale 3/5 Comasl.26638.21 from arrest and it be allowed to sail.
7 Having heard the learned counsel appearing on behalf of Defendant Nos.1 & 2 on this aspect, I do not see any impediment in releasing the 1st Defendant Vessel from the order of arrest subject to the claim of the Plaintiff in the sum of Rs. 1,36,88,852/- being secured. The learned counsel appearing on behalf of Defendant Nos.1 & 2 has tendered a Manager's cheque of HDFC Bank drawn in favour of the Prothonotary and Senior Master of this Court bearing No.418037 in the sum of Rs.1,36,88,852/-. The said Manager's cheque has been handed over to the Associate of this Court today. The Associate of this Court is directed to deposit the said Manager's cheque with the Prothonotary and Senior Master during the course of today and/or latest by Monday, 22nd November, 2021. The Prothonotary and Senior Master shall encash the said Manager's cheque and the monies received thereunder shall be invested with any Nationalized Bank in a Fixed Deposit initially for a period of three months and shall be subject to any further orders passed by this Court.
8 Considering that the entire claim of the Plaintiff is now secured by way of a deposit, the order of arrest of the 1st Defendant Vessel passed on 17th November, 2021, is vacated and the 1st Defendant Aswale 4/5 Comasl.26638.21 Vessel is released from arrest and is allowed to sail. The instrument of release is dispensed with. The letter from the Sheriff of Mumbai is also dispensed with.
9 I am informed that the 1st Defendant Vessel is currently at the port of Mundra, Gujarat. The Port as well as the Customs and other authorities at Mundra are directed to allow the 1st Defendant Vessel to sail on production of a digitally signed copy of this order, and which shall be signed by the Private Secretary/ Personal Assistant of this Court. All concerned shall act on production by fax or e-mail of a digitally signed copy of this order.
(B. P. COLABAWALLA, J.) Aswale 5/5