Bombay High Court
Gac Bunker Fuels Limited vs Dsv Gerimal (Imo No. 7932240) And Anr on 13 November, 2019
Author: K.R. Shriram
Bench: K.R.Shriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY AND ORIGINAL CIVIL JURISDICTION
COMMERCIAL ADMIRALTY SUIT NO.60 OF 2018
Gac Bunker Fuels Ltd. ..Plaintiff
Vs.
DSV Gerimal (IMO No.7932240) & Anr ..Defendants
Mr. Prasad Shenoy a/w Mr. Nirav Shroff i/b Crawford Bayley and Co.for
Plaintiff
None for Defendants
Mr. Satish D. Chitgopekar, Dy. Sheriff of Mumbai present
CORAM : K.R.SHRIRAM, J.
DATE : 13th NOVEMBER 2019 P.C.:
1 On 26-7-2018, defendant no.1 vessel was arrested. At that stage, Mr. Ashwin Shanker advocate on behalf of Halani International Ltd., had filed a caveat and offered security in the sum of Rs.1,00,000/-. Relying on judgment passed in Mr. Bernardo De Souza Vs. m.v. Seven Island and Anr.,1, notice to caveator was dispensed with and the vessel was ordered to be arrested. Strangely, Mr. Ashwin Shanker thereafter, did not file vakalatnama on behalf of owners of defendant no.1 vessel, but takes out a notice of motion for a third party, whose equipments were on board of defendant no.1 vessel, for release of the equipments. By an order dated 25-
3-2019, the court did not permit to release those equipments until a final order is passed in Notice of Motion No.73 of 2019 in Commercial Admiralty 1 Notice of motion no.1858 of 2006 in admiralty suit no.11 of 2006-unreported Meera Jadhav ::: Uploaded on - 14/11/2019 ::: Downloaded on - 14/11/2019 23:43:39 ::: 2/4 comas-60-18(4).doc Suit No.46 of 2018. That notice of motion is still pending.
2 Rule 929 of the Bombay High Court (O.S.) Rules reads as under:
"Rule 929:- Caveat against arrest of property:- Any person desiring to prevent the arrest of any property shall file in the registry a preceipe, signed by himself or his Advocate, who may be acting for him, requesting that a caveat be entered against the arrest of the said property and undertaking to enter an appearance in person or a vakalatnama in any suit that may be instituted against the said property and to give security in such suit in a sum not exceeding the amount to be stated in the preceipe or to pay such sum into the registry. A caveat against the issue of a warrant for the arrest of the said property shall thereupon be entered in a book to be kept in the registry, called the "Caveat warrant Book".
Despite giving an undertaking to file vakalatnama in the suit, Mr. Ashwin Shanker has not filed vakalatnama. Therefore, Mr. Shanker is in breach of an undertaking given to the court.
3 Writ of summons has been served on defendant no.2 and Mr. Shenoy relies on joint affidavit of service of Mr. A.D. Shaikh, Bailiff and Mr. Vikar Girkar, affirmed on 13-12-2018. Despite service, even defendant no.2 has not entered appearance. This is a commercial suit and the period of 120 days prescribed under Order 8 Rule 1 of Code of Civil Procedure, as amended, has expired long ago.
4 Owners of defendant no.1 not having entered appearance even
Meera Jadhav
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despite giving an undertaking in the caveat, let alone filing a written statement, and defendant no.2 not even entered appearance or not having filed written statement, plaintiff will certainly be entitled to judgment against defendants, as provided in Order 8 Rule 10 of the Civil Procedure Code.
5 Therefore, Suit stands decreed in terms of prayer clauses (a) and (b) and the same read as under:
"(a) That this Hon'ble Court be pleased to pass as an order, judgment and decree in favour of the plaintiff jointly and/or severally against the defendants for securing, and/or satisfying the plaintiff's claim for an amount of USD343,982/- (United States Dollars Three Forty Three Thousand Nine Hundred Eighty Two only), the principal claim being a sum of USD295,900/- (United States Dollars Two Hundred Ninety Five Thousand Nine Hundred only) along with interest at the rate of 1.8% per month from due date of each invoice till the filing of the present suit amounting to USD48,081/- (United States Dollars Forty Eight Thousand Eighty One only) alongwith further interest at the rate of 1.8% per month on the principal amount of USD295,900/-
(United States Dollars Two Hundred Ninety Five Thousand Nine Hundred only) till its realization alongwith costs of litigation in India amounting to USD15,000/- (United States Dollars Fifteen Thousand only) plus poundage as per particulars of claim.
(b) that the defendant no.1 vessel together with her hull, engines, gears, tackles, bunkers machinery, apparel, plant, furniture, fixgtures, appurtenances and paraphernalia, plant and machinery at present lying at Port and Harbor at Mumbai, or wherever she is within the territorial waters of India be arrested and detained by a Warrant of Arrest of this Hon'ble Court until the satisfaction of the Plaintiff's claim for an amount of USD358,982/- (United States Dollars Three Hundred Fifty Eight Thousand Nine Hundred and Eighty Two), the principal claim being a sum of USD295,900 (United States Dollars Two Hundred Ninety Five Thousand Nine Hundred only) along with interest at the rate of 1.8% per month from due date of each invoice till the filing of the present suit amounting to USD48,081/- (United States Dollars Forty Eight Thousand Eighty One only) alongwith further interest at the rate of 1.8% per month on the principal amount of USD295,900/- (United States Dollars Two Hundred Ninety Five Thousand Nine Hundred only) till its realization alongwith costs of litigation in India amounting to USD15,000/- (United States Meera Jadhav ::: Uploaded on - 14/11/2019 ::: Downloaded on - 14/11/2019 23:43:39 ::: 4/4 comas-60-18(4).doc Dollars Fifteen Thousand only) plus poundage as per particulars of claim and the same be condemned in respect of the said claim herein and be ordered to be sold along with her hull, engines, gears, tackles, bunkers machinery, apparel, plant, furniture, fixgtures, appurtenances and paraphernalia and the net sale proceeds thereof be ordered to be applied to the satisfaction of the plaintiff's claim herein and the cost of this suit."
6 Drawn up decree dispensed with.
(K.R. SHRIRAM, J.) Meera Jadhav ::: Uploaded on - 14/11/2019 ::: Downloaded on - 14/11/2019 23:43:39 :::