Owners And Persons Interested In The ... vs Ktv Health Food Pvt Ltd on 23 December, 2014

[Cites 33, Cited by 0]

Madras High Court

Owners And Persons Interested In The ... vs Ktv Health Food Pvt Ltd on 23 December, 2014

Bench: R.Subbiah

       

  

   

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Admiralty Jurisdiction)

DATED :     23.12.2014

CORAM

THE HONOURABLE MR. JUSTICE R.SUBBIAH

Application Nos.6124, 6259, 6260 & 6261 of 2014
in
C.S.No.631 of 2014

As per Application No.6260 /2014

Owners and persons interested in the vessel
MT Titan Vision, now lying at
the Port of Karaikal, and
represented by its Master.			... Applicant/defendant

			Vs.

KTV Health Food Pvt Ltd.,
Rep. by its Director,
Having its head office at
JR Foods Ltd.  campus, Thirubuvanai,
Puducherry-605 107,
and its registered office at 
7/3, Arul Nagar Salai,
R.V.Nagar, Kodungaiyur,
Chennai-600 118.						... Respondent/Plaintiff


	Application filed under Order XIV Rule 8 of the Original Side Rules read with Order 3VII Rule 11(d) of CPC., praying to reject the plaint.

For applicant/defendant	: Mr.K.Bijai Sundar and Dr.R.Sunitha Sundar


For respondent/plaintiff	: Mr.Sathish Parasaran, senior counsel,
				   for Mr.M.Sunil Kumar


COMMON ORDER

Application No.6124 of 2014 has been filed by the plaintiff under Order XIV Rule 8 of O.S.Rules read with Rule XLII Rule 3 of O.S.Rules praying for arrest of the respondent vessel MT TITAN VISION together with her engines, gears, tackles, apparels, Plant, Machinery, Furniture & Fixtures and paraphernalia, presently in Indian Waters at the Port of Karaikal, or wherever found within the territorial waters of India.

2.Application No.6259 of 2014 has been filed by the defendant seeking to vacate the order of arrest dated 25.09.2014 passed in Application No.6124 of 2014 in respect of the vessel MT TITAN VISION.

3.Application No.6260 of 2014 has been filed by the defendant under Order XIV Rule 8 of the O.S.Rules read with Order VII Rule 11(d) of C.P.C., praying to reject the plaint.

4.Application No.6261 of 2014 has been filed by the defendant under Order XIV Rule 8 of the O.S.Rules and Section 45 of the Arbitration and Conciliation Act, 1996, praying to refer the dispute raised in the suit to arbitration in terms of the arbitration clause as contained in the charter party and bills of lading.

5.The suit has been filed by the plaintiff for the following reliefs_

(i)to direct the defendant to pay a sum of Rs.5,14,19,114.50 (in USD 845,570) together with interest at the rate of 18% per annum from the plaint till the date of realisations;

(ii)for the arrest and sale of the defendant vessel MT TITAN VISION together with Engines, Tackles, Cranes, Derricks, Machinery and other Paraphernalia and Articles on Board OF the said vessel presently lying in the Indian waters at the Port of Karaikal, or wherever found within the territorial waters of India;

(iii)for a direction to adjust the sale proceeds of the defendant vessel MT TITAN VISION against the suit claim; and

(iv)for payment of costs of the suit.

6.The averments made in the plaint, in brief, are as follows_ 6(1)The plaintiff is a private limited company, incorporated under the Companies Act, 1956, having head office at Puducherry and its registered office at Chennai. The defendant is the owner and person interested in the vessel MT TITAN VISION registered with Singapore flag, with a gross tonnage of (GRT) 6190 MTs and a dead weight of (DWT) 9016 T. The said vessel is owned by Singapore Tankers Private Ltd., care of Oceanic Shipping Private Ltd., Singapore and M/s.7 Seas Ship Management Private Ltd., is the disponent owner / Bareboat Charterer of the said vessel having its registered office at Union Banking, 71, Tras Street, 10-179, Singapore. The Nova Carriers (Singagore) LTE LTD is the charterer.

6(2)The plaintiff is carrying on business in RBD Palm Olien Edible Oil and the plaintiff's Singapore partner is M/s.Wilmar Trading Private Ltd. The plaintiff, in the course of business, placed an order with the M/s.Wilmar Trading Private Ltd., to export 4,999.956 MTs and 3,299.962 MTs RBD Palm Olein Edible Oil. As per the said order, 4,999.956 Mts of Oil was to be delivered to the plaintiff at Puducherry through Karaikal Port and 3,299.962 Mts of Oil was to be delivered to the plaintiff at Chennai through Chennai Port. 4,999.956 MTs of Oil was contracted for 4,191,463.85 UDS and 3,299.962 Mts of Oil was contracted for 2,710,918.78 USD. Based on the order, the Wilmar Trading Pvt Ltd had, in turn, placed the order with M/s.AAA Oils & Fats Pvt Ltd. Subsequently, M/s.AAA Oils & Fats Pvt Ltd loaded/shipped the RBD Palm Olein Edible Oil in the defendant's vessel MT TITAN VISION at the port of Dumai, Indonesia. The Tanker Bill of Lading dated 22.07.2014 was also signed by the disponent owner of the vessel confirming the shipment on board and the destination port for 4,999.956 Mts of oil is at Puducherry and 3,299.962 Mts of Oil is at Chennai. Subsequent to the loading of the oil, the commercial invoice dated 22.07.2014 was raised to Wilmar Trading Private Ltd, who in turn raised the commercial invoice dated 25.07.2014 to the plaintiff.

6(3)The vessel MT TITAN VISION was expected to arrive at Karaikal Port on 31.07.2014, bering ten days for travel and arriving. But, the defendant vessel did not arrive at the Karaikal Port, as per the terms of the contract and bill of lading. On 25.07.2014, the plaintiff was informed through an email communication that the vessel experienced difficulty in maintaining engine and thereby, the vessel master decided to bring the vessel back to Singapore for rectification. As per the said email dated 25.07.2014, the defendant vessel was not in seaworthy condition at the time of commencement of the voyage. On 29.07.2014, the plaintiff was informed through an email that the vessel is expected to arrive at Karaikal port on 03.08.2014 and Chennai Port on 05.08.2014. However, the vessel was further delayed and the plaintiff received another intimation on 08.08.2014 informing that the vessel encountered with exhaust valve cooling problem and the unit is having abnormal temperature and the owner had called upon the Master to continue the voyage without delay. The plaintiff, despite several e-mails and persistent follow-up, was unable to ascertain the exact date of delivery. Finally, the vessel was berthed at Karaikal port on 20.08.2014, having been towed in from the high seas due to its breakdown. There was a delay of 20 days, than the expected date of arrival, causing serious loss to the plaintiff. The plaintiff discharged the oil of 4,999.956 MTs at Karaikal Port and discharge of oil was completed by 21.08.2014. In the meantime, the engine of the vessel was to be rectified and the repairs ought to have been carried out in the vessel and the vessel was to be departed from the Karaikal Port and was expected to arrive the Channai Port within 2 days for discharging the remaining oil of 3,299.962 MTs. In such circumstances, the defendant or the local agent of the defendant ought to have communicated the plaintiff about the further status of the vessel. However, there was no communication about the status of the seaworthiness of the vessel, expected time of departure as well as the expected time of arrival, from the defendant's agent at Chennai. Thereafter, upon the repeated conversations, only on 09.09.2014 the disponent owner of the vessel thought it fit to issue a letter stating that_ the vessel encountered main engine repair due to which she is unable to sail from Karaikal port without carrying out repairs and we are in process of repairing the vessel and further stated that_ since the receiver(plaintiff) want the cargo urgently and they agree to take delivery of their cargo at Karaikal Port itself, we have no objection in discharging the cargo at Karaikal Port as we are unable to commit the time which would taken for ship's repairs as need to secure new spares/old spares to be repaired etc. and in addition to the above, the exporter/consignor by its email dated 09.09.2014 also reiterated the factual aspects about the repairs of the vessel and the plaintiff was in urgent need of the cargo and the email of the consignor dated 09.09.2014 reads as follows_ for your information, the vessel encountered with main engine repairs due to which she unable to sail from Karaikal port without carrying out repairs. As per owners, the vessel is carrying out repairs at Karaikal Port and not able to commit the time required to complete the repairs and further accepted the fact that_ since the receiver wants the cargo urgently and having known the situation, they agree to take delivery of their cargo at Karaikal Port itself, we do not have any objection to discharge the cargo at Karaikal Port. 6(4)The plaintiff was in the urgent need of the oil and capital amount got invested in the oil got blocked and there is huge fluctuation in decreasing of the international market rate of the oil, subsequent to the purchase, interest loss over the capital invested and further the owner, disponent owner and the master of the vessel and defendant's agent at Chennai had not stated any development about the repairs being carried out in the vessel, to the plaintiff. Hence, the plaintiff was left with no other alternative except to discharge the oil from the vessel at Karaikal Port itself and transport the same to Chennai. The plaintiff had to get the bill of lading amended by amending the port of destination from Chennai Port to Karaikal Port and thereafter, to discharge the oil at Karaikal Port. In the course of getting necessary amendments, making supplementary documents and making arrangements for getting lowest estimates for transportation of the oil from Karaikal Port to Chennai via roadways, the plaintiff could get the oil discharged from the Karaikal port only on 20.09.2014. Thus, the plaintiff has incurred a total loss of Rs.5,14,19,114.50. Hence, the plaintiff has filed the present suit for the reliefs as stated supra.

7.Pending the suit, the plaintiff has filed an application in A.No.6124 of 2014 seeking for arrest of the respondent vessel MT TITAN VISION. When the said application came up for hearing on 25.09.2014, this Court has passed an interim order for arrest of the vessel.

8.On appearance, the defendant has filed three applications viz., Application Nos.6259, 6260 and 6261 of 2014. Application No.6259 of 2014 has been filed by the defendant seeking to vacate the order of arrest dated 25.09.2014 passed in Application No.6124 of 2014 in respect of the vessel MT Titan Vision. Application No.6260 of 2014 has been filed by the defendant praying to reject the plaint. Application No.6261 of 2014 has been filed by the defendant praying to refer the dispute to arbitration in terms of the arbitration clause as contained in the charter party and bills of lading.

9.The sum and substance of the averments in the above three applications filed by the defendant, inter alia, are as follows_ 9(1)The shippers were aware that the vessel experienced difficulty in maintaining the engine speed, after sailing from the load port and hence, it is not true to state that the vessel was unseaworthy. Admittedly, more than 30 emails have been sent by the disport agents to the plaintiff to surrender the original documents or bankers letter of indemnity to issue the delivery orders for the subject cargo from the period commencing from 28.07.2014 till 14.08.2014. This would clearly indicate that the plaintiff was not ready to take delivery of the cargo by surrendering the original bills of lading, even after the vessel was berthed at Karaikal port. The plaintiff never negotiated the original bills of lading through their bankers. The suit is liable to be dismissed on the ground that the plaintiff has not surrendered the original bills of lading and the plaintiff is not the owner of the suit consignment.

9(2)The shipper was aware that the vessel was undergoing repairs for the safety of the vessel and the cargo and that the defendant would not be able to commit a time period to complete the said repairs. Even otherwise, time was never the essence of the contract of carriage. The fact about the repairs of the vessel and delivery of cargo was made known to the plaintiff by the shipper, who had also agreed to take delivery of their cargo at Karaikal Port itself. In fact, the shipper also confirmed that they had no objection for the discharge of the cargo at Karaikal port instead of Chennai and that the suit consignments would be cleared directly from Karaikal Port. The shippers were aware that the vessel cannot unilaterally discharge the cargo at Karaikal port and suitable permission was required to be obtained from the customs authorities at Karaikal for the said discharge and that the vessel agents would have to file supplementary manifest for the same. Hence, based on the letter dated 09.09.2014 issued by the said shippers, the disponent owners, M/s.7 Seas Ship Management Private Ltd, Singapore had also requested for permission for filling of supplementary manifest at Karaikal, which was accepted by the customs authorities. Only after the said amendment, the suit consignment was permitted to be discharged at Karaikal. Therefore, there has been no breach of contract of carriage or negligence as alleged by the plaintiff. The plaintiff having agreed to take delivery of the suit cargo at Karaikal itself cannot claim to have incurred any loss for alleged transportation charges that would have been incurred, had the cargo been moved from Karaikal to Chennai. The plaintiff has not even filed the bills of lading in original before this Court to prove that they are the owners of the suit consignment. The plaintiff has not surrendered any of the original bills of lading to the defendant while taking delivery of the cargo and only on the basis of the letters of indemnity furnished by M/s.Nova Carriers (Singapore) Private Ltd, for the plaintiff, the suit consignments were given delivery. But for the said letters of indemnity, the consignments would not have been delivered to the plaintiff. In the absence of the original bills of lading, duly endorsed in their favour, the plaintiff cannot claim title to the suit cargo to enable them to file the present suit.

9(3)As per the tanker bills of lading and the charter party, reference of which is made in the bills of lading, in case of any dispute, the same is to be referred to arbitration at Singapore. Under the General clause paramount, the Hague Rules and as amended by the Hague Visby Rules governing the load port alone, will be applicable under the contract of carriage, due to the international character of the contract. The plaintiff having agreed to the incorporation of arbitration clause, which is a condition of carriage, has deliberately chosen not to even whisper about the same in the plaint or the application filed for arrest of the vessel. As per the terms of the charter party and the tanker bills of lading, in the event of any dispute arising out of the said carriage, arbitration, if any, is in Singapore under English Law. However, the suit and the application for arrest of the vessel have been filed by the plaintiff without any reference to the arbitration at all. Hence, the present suit is not maintainable in law. There is no cause of action under the contract of carriage to file the present suit. The plaintiff was aware that it had agreed along with the shipper or owner of the cargo or holder of the original bills of lading will not hold the carrier and/or its agents liable for loss, damage or delay of whatsoever kind arising, either directly or indirectly from any act, neglect or default, as a condition of carriage. Hence, the plaintiff is estopped from filing the present suit for loss due to alleged delayed delivery. The defendant is not liable for any delay in discharge of cargo, if the cause is beyond the party's control and not arising or resulting from the fault of the party, especially when the parties have voluntarily accepted the said cargo. As there is an arbitration clause under the Charter Party, the plaintiff would have to establish and substantiate the quantification before the Arbitration Tribunal and the same cannot be gone into by this Court in the present proceedings. Thus, the defendant sought for rejection of the plaint as well as for vacating the interim order of arrest of the vessel, thereby prayed for referring the matter to the Arbitration.

10.Resisting the above applications filed by the defendant, a common counter affidavit has been filed by the plaintiff, inter alia contending that the defendant's challenge to the locus standi of the plaintiff, for the reasons that the plaintiff's name was not expressly stated in the 'Consignee' box in the Bill of Lading and that the plaintiff received the goods without producing the original Bills of Lading are wholly baseless. It is well-established practice in transactions involving the carriage of goods by sea that the buyer/receiver is not specified by name as the consignee. The same is done in order to provide the buyer with the flexibility to sell the goods while they are in transit and effect such sale on the high-seas by merely making an endorsement upon the Bill of Lading. In such cases, the ultimate holder of the duly endorsed Bill of Lading is entitled to receive the goods as the document itself evinces proof of title. The defendant/disponent owner cannot seek to take advantage of its own defaults and claim that the plaintiff's failure to produce the Bills of Lading at the time of delivery of the goods vitiates the plaintiff's title, especially where the plaintiff was and continues to remain in possession of the original Bills of Lading. The present dispute does not fall within the ambit of the arbitration clause in so far as the plaintiff herein has asserted a maritime claim that must be adjudicated in exercise of a jurisdiction in rem as it concerns the right in rem of the plaintiff to seek compensation on account of the damage and losses caused to it from the vessel, as also to seek arrest of the ship in lieu of security for the same. In the instant case, the plaintiff's claims are premised upon the fact that the concerned ship was unseaworthy and consequently, losses have been occasioned upon the plaintiff due to the unseaworthiness of the vessel. As such, the instant claims relating to unseaworthiness of the ship and consequent losses fall squarely within the aegis of an exercise of admiralty jurisdiction in rem, and cannot be determined by an arbitral tribunal constituted under contract. The incorporation clause does not have the effect of incorporating the terms of the Charter Party in the instant case. Admittedly, the plaintiff herein is not a party to the Charter Party referred to in the Bill of Lading. The subject vessel is under the charter party executed between M/s.7 Seas Shipping Management Private Ltd and M/s.Nova Carriers (Singapore) Private Ltd and this being the case, there is no occasion or whatsoever on the part of the plaintiff or the M/s.Wilmar Trading Private Ltd. to have occasion of binding arbitration relating to the present dispute. Therefore, the charter party was not at all signed by the plaintiff and the Bill of Lading incorporating the general word of arbitration clause would not reflect the real intention of the parties to refer the matter to the arbitration and to bind themselves to the arbitration. Thus the plaintiff prayed for the dismissal of all the applications filed by the defendant.

The learned counsel for the applicant/defendant has made the following submissions in respect of the prayer made in the application filed by the defendant:-

Submissions with regard to title of the plaintiff to the cargo:-

11.At the out set, the learned counsel for the defendant submitted that in the plaint, absolutely there is no whisper to the effect that the plaintiff is having maritime lien or claim to have the vessel arrested as action in rem. Similarly, there is no whisper in the plaint that the plaintiff has filed the suit as either owner of the consignee or endorsee of the Bill of Lading or Holder of Bill of Lading. Hence, absolutely there is no cause of action for the plaintiff to file the present suit because of lack of title over the cargo. In this regard, the learned counsel for the defendant invited the attention of this Court to the Bills of Lading produced by the plaintiff along with the plaint and submitted that the said Bills of Lading do not contain any banker's endorsement and there is no valid endorsement in the Bills of Lading. Only if there is a valid endorsement of the banker in the Bill of lading, the plaintiff can be construed as the owner of the cargo. Mere possession of the Bills of Lading will not entail a person to sue. In support of his contention, the learned counsel for the defendant relied upon the judgment reported in 1990(3) SCC 481 (British India Steam Navigation Co. Ltd., Vs. Shanmughavilas Cashew Industries and others), wherein it has been held as follows_ 14.The bill of lading is the symbol of the goods, and the right to possess those passes to the transferee of the bill of lading. In other words, its transfer is symbolic of the transfer of the goods themselves and until the goods have been delivered, the delivery of the duly endorsed bill of lading operates as between the transferor or transferee, and all who claim through them, as a physical delivery of the goods would do. The bill of lading is a negotiable instrument in the sense of carrying with it the right to demand and have possession of the goods described in it. It also carries with it the rights and liabilities under the contract, where the property in the goods also is transferred. However, a bill of lading is not a negotiable instrument in the strict sense of the transferee deriving better title than the transferor. The transferee of a bill of lading gets no better title than the transferor himself had. Mere possession of the bill of lading does not enable the holder to sue a person at a place where the transferor himself could not have done. Where the negotiation of a bill of lading is by the person who had a right to sue on it, mere possession of it does not enable the holder to sue any person who was not liable under it and not to sue another who was liable under it to make good the claim. He cannot also sue at a place not intended by the parties when intention has been expressed.

..........

39.Section 1 of the Act provides that fights under bills of lading are to vest in consignee or endorsee. It says: "Every consignee of goods named in a bill of lading and every endorsee of a bill of lading to whom the property in the goods therein mentioned shall pass, upon or by reason of such consignment or endorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself." Thus a bill of lading is intended to provide for the rights and liabilities of the parties arising out of the contract of affreightment. If the consignee claims the goods under a bill of lading he is bound by its terms. The property in the cargo passes to the consignee or the endorsee of the bill of lading but the contract whereunder the consignment or endorsement is made has always to be taken into consideration. Thus the consignee or an endorsee gets only such rights as its consignor or endorser had in respect of the goods mentioned in the bill of lading. This is in conformity with Private International law applicable to the case.

Thus, by relying upon the said Judgment, the learned counsel of the defendant submitted that even in the present case also, in the Bills of Lading the name of the plaintiff does not find a place as a consignee. In the absence of any averment in the plaint that he is the owner of the cargo as well as in the absence of the name of the plaintiff being found in the Bills of Lading as consignee, the plaintiff cannot maintain the suit as against the defendant. Only the owner/consignee/endorsee/holder of the Bill of Lading can file the suit. In this regard, the learned counsel for the defendant also relied upon the judgments reported in MANU/GJ/0034/2004 (M.G.Forests Pte Ltd., Vs. M.V.Project Workship and 2014(2) CTC 513 (Owners and Persons interested in the Vessel MT Titan Vision Vs. 3F Industries Ltd).

12.It is further submission of the learned counsel for the defendant that the plaintiff had failed to produce the original bills of lading even after the defendant issued notice to the plaintiff for production of bills of lading; but, during the course of arguments only the plaintiff has produced the third General Bills of Lading stating that the third original Bills of Lading contain the banker's endorsement. But, the said third original Bills of Lading were not filed by the plaintiff along with the plaint. Therefore, this Court cannot consider the same at this stage. Further, by drawing the attention of this Court to the endorsement made in the third bills of lading, the learned counsel for the defendant submitted that in the third bills of lading, the banker's had made the endorsement 'Pay/delivery to M/s.KTV Health Foods Pvt Ltd., or to order, as agents for collection. By relying upon the said endorsement, the learned counsel for the defendant submitted that the word 'as agents' would show that the plaintiff has acted on behalf of some other principal; but the principal's name was not given. In the absence of plaintiff being the owner, the plaintiff will not have a right to sue.

13.The learned counsel for the defendant further submitted that three sale contracts entered into between the plaintiff and M/s.Wilmar Trading Pvt Ltd., have been produced by the plaintiff before this Court, which were not filed along with the plaint. The said documents do not find place in the list of documents under Order VII Rule 14(1) of CPC. Even assuming for a moment that the said documents were not in the possession of the plaintiff, it has not been disclosed by the plaintiff as to whose possession the same were at the time of filing the suit. Further, the plaintiff has neither pleaded that it had paid the full sale consideration to the seller nor had it filed any documentary proof of such payment at the time of filing the suit. Hence, even according to the sale contracts, on the date of filing the suit, the plaintiff did not have a title to sue. Further, the plaintiff does not have title to sue, because in the first contract, under the caption governing law, it has been stated that title of the cargo shall remain with the seller and shall not pass to the buyer until payment in full for the same has been received by the seller.

Submission regarding maritime claim:-

14.It is further submitted by the learned counsel for the defendant that unseaworthiness of vessel and delay in delivery of cargo would not give a right to the plaintiff to secure the arrest of the vessel and the said issues can be decided only in the arbitration proceedings. Therefore, on this ground also the plaint is liable to be rejected.

Submissions regarding discrepancies in plaint averments:-

15.The learned counsel for the defendant, by inviting the attention of this Court to the averments made in the plaint, submitted that the suit has been filed only claiming compensation in respect of alleged loss caused to the plaint. But, in the plaint, at one place, in para-18(E), it has been stated that the plaintiff would incur a sum of Rs.2,000/- per metric tone, totally to a sum of Rs.65,99,924/- towards the transportation charges for transporting the oil from Karaikal Port to Chennai; but, in another place the plaintiff has stated that the loss has already caused to them. Thus, the learned counsel for the defendant submitted that the discrepancies found in the plaint averments would show that the claim made by the plaintiff is not sustainable. Further, the learned counsel for the defendant submitted that in para 15 of the plaint, it is stated by the plaintiff that there is huge fluctuation in decreasing of the international market rate of the oil subsequent to the purchase and that because of the delay in delivery of the cargo, the plaintiff has incurred loss. But, the plaintiff has not explained in the plaint as to how the fluctuation in the international market will have a bearing on the plaintiff's claim.

Submissions regarding Authority of the Director to file the suit:-

16.It is further submitted by the learned counsel for the defendant that the suit was filed by the Director of the plaintiff-company viz., Mr.K.T.V.Kannan, who has represented the plaintiff. But, he has not filed any proper authorization in the form of either Power of Attorney or Board Resolution or Authorization Letter, which vitiates the entire suit. Since the Director K.T.V.Kannan has no authority to sue on the date of filing the suit, the suit is liable to be rejected on this ground also. In this regard, the learned counsel for the defendant relied upon the judgment of this Court reported in MANU/TN/3885/2010 in the case of Schmenger GMBH and Company Leder through its Liaison Concern Schmenger Leder India represented by its Liaison Officer Mr.Mukhtar Parvez Vs. Saddler Shoes Private Limited represented by its Managing Director Mr.M.Jamal and the relevant portion of the said judgment reads as follows_ 20. The abovesaid decision reported in MANU/SC/0002/1997 : 1996(6) SCC 660 : 1997(90) Comp. Cases 329 : AIR 1997 SC 3 (United Bank of India Vs. Naresh Kumar (cited Supra), has been referred to by the High Court of Himachal Pradesh in the decision reported in 2004(118) Comp. Cases 328 (Apple Valley Resort Vs. H.P.State Elec. Board), in which it was observed by the High Court of Himachal Pradesh that Order 29, Rule 1 of Code of Civil Procedure only authorizes the persons mentioned therein to sign and verify the pleadings on behalf of a Corporation/Company and it does not authorize such persons to institute an action on behalf of a Corporation/Company; the question of authority to institute an action on behalf of a Company is not a technical matter; it has far-reaching effects and it often affects policy and finances of the Company; therefore, unless a power to institute an action is specifically conferred on a particular Director, he would have no authority to bring an action on behalf of the Company; the power to institute an action on behalf of the Company can be conferred on a Director or any other Officer of the Company only by the Board of Directors by way of a Resolution in that regard; in the absence of a specific provision of the Board of Directors authorizing the Liaison Officer to institute the petition (suit) for and on behalf of the Company or power conferred on the Director by the Memorandum and Articles of Association, the petition (suit) cannot be said to have been laid by a duly authorized and competent person for and on behalf of the Company; the High Court of Himachal Pradesh further held that the suit was bad and liable to be dismissed on that ground alone.

21.Since the Plaintiff neither filed the Memorandum/Articles of Association, nor the Resolution of the Board of Directors of the Company, authorizing the Liaison Officer namely the person to verify the plaint and institute the suit. Hence, as per the decisions cited above, I am of the view that the suit itself is not maintainable.

22.In the present case, no scrap of paper had been filed before this Court to show as to who is the person, namely as to whether the Liaison Officer is the competent person authorized by the Board of Directors in their Resolution in the Meeting, to verify the plaint and institute the suit. Hence, the suit filed by the Liaison Officer on behalf of the Plaintiff-Company, is not maintainable. The second issue framed in this suit is answered against the plaintiff. Thus, by relying upon the above said judgment, the learned counsel for the defendant submitted that the suit is liable to be rejected on the ground that the suit was filed without any authority by the Director of the plaintiff-company.

Suppression of material facts:-

17.It is the next fold of submission of the learned counsel for the defendant that the plaintiff has failed to disclose the full and material facts in the plaint; there is suppression of material facts; therefore, the suit is liable to be rejected. In support of this contention, the learned counsel for the defendant submitted that the plaintiff has neither whispered that it has filed the suit as owners/consignees/endorsees nor holder of original bills of lading. Admittedly, the plaintiff did not have the same in its custody not only at the time of clearing the cargo but also at the time of filing the suit. No undertaking has been given by the plaintiff that since the original bills of lading were not filed along with the plaint, that they would be filing the same on a later date or that it was endorsed in their favour but not in custody or in whose custody the original bills of lading were. Mere mention of the plaintiff's name in the column ''notified party'' does not confer any right to sue. A Notice to Produce the Originals of the 33 Bills of Lading was issued on 09.10.2014, after which the 'third original' was submitted across the Bar which contained endorsement, 'pay/deliver to M/s.KTV Health Foods Pvt. Ltd., or to order, as agents' on 4.11.2014 during the oral arguments. The same does not confer any title to sue on the date of filing the suit. The Photocopies of the First Original was filed along with the plaint, but after notice to produce the Originals, third originals were filed. Both the two sets of documents are not the same. The submission of the third original, in fact, confirms that the plaintiff did not have any originals first, second or third, at the time of filing the suit.

18.It is further submitted by the learned counsel for the defendant that Clause 1 on the overleaf terms and conditions of all the Bills of lading contain .. INCORPORATION ... All terms, conditions, liberties and exception of the charter party overleaf referred to, including the Arbitration Clause ... are thereby expressly incorporated ... But, no mention of the arbitration clause has been made either in the plaint or made before this Court at the time of filing the suit and obtaining interim order of arrest. The failure on the part of the plaintiff to produce at least one of the three original Bills of lading, which are all materials which should have been in the exclusive possession of the plaintiff as owner/endorsee/consignee/holder, is fatal to the suit. Further, the failure on the part of the plaintiff that the suit cargo was taken delivery by it on the basis of the Letter of Indemnity and not by surrender of the Original bills of lading is also fatal to the suit. The plaintiff had obtained the order of arrest on the basis of the phtocopies of the bills of lading, namely the 1st original, that too, without any bank endorsement thereon. Only after the notice to produce dated 09.10.2014 was tendered on the counsel for the plaintiff, the plaintiff had thereafter taken steps with the UCO Bank, Chennai Main Branch, to get the 3rd Original with an endorsement overleaf, mentioned above and produce the same on 05.11.2014 during the course of the arguments in the applications. No affidavit or application was filed or leave obtained from the Court for such production of originals. No whisper has been made in the pleadings or affidavit or counter, with respect to its production on a latter date.

19.Thus, the learned counsel for the defendant submitted that suit is liable to be rejected for the material suppression of facts. In this regard, the learned counsel for the defendant relied upon the judgment delivered by the Court of Appeal at Singapore reported in (2003) 3 SLR 362 (M.V.Rainbow Spring) and the relevant portion in the said judgment reads as follows_ 33.Accordingly, admiral had a duty to disclose all material facts when it applied for the warrant. In this connection it is helpful to reiterate the test of whether a fact is material as set out by his Court in The Damavand (1993) 2 SLR 717 at 731 which is:

Whether the fact is relevant to the making of the decision whether or not to issue the warrant of arrest, that is, a fact which should properly be taken into consideration when weighing all the circumstances of the case, though it need not have the effect of leading to a different decision being made.

This test of materiality, ie how relevant the fact is, is well established. The same test has been adopted in other areas where full and frank disclosure is required and the expression should have the same meaning across the board for consistency. Bearing that test in mind, we must respectfully disagree with the conclusion of the judge that the failure on the part of Admiral to disclose the exchange of correspondence was not a material non-disclosure. What the assistant registrar had to decide when considering whether to issue the warrant was whether RS Shipping would be liable in personam on the charter and in that connection, it was, at the least, relevant (if not critical) that there were documents that suggested that another party, Oriental, was the party to whom in personam liability attached under the charter. Those documents should have been drawn to the attention of the assistant register. If they had been, the assistant registrar could well have sought clarification or other evidence from Admiral to substantiate its position on the liability of RS Shipping before deciding whether to issue the warrant.

.....

37.In our view, there are good reasons of policy to adopt the position taken by the decisions cited in (35) and (36). It would be wrong to institute a strict rule to the effect that a warrant of arrest ought not to be set aside simply because of material non-disclosure. It would be inimical to the observance of the duty of full disclosure in relation to applications for the arrest of vessels if such a rule represented the legal position. Arrest is a drastic remedy given on an ex-parte basis. The duty to make dull and frank disclosure is an important bulwark against the abuse of the process of arrest. There must be the possibility of a sanction for the failure to observe that duty. The approach taken below would in effect lead to the eradication of the duty of disclosure and it would also overly favour the interest of plaintiffs at the expense of those of shipowners. The Courts must retain the discretion to set aside an arrest for non-disclosure if the facts warrant it notwithstanding that otherwise they would have jurisdiction over the matter and that the procedure in the rules had been followed. Thus, by relying upon the above said judgment, the learned counsel for the defendant submitted that the plaintiff has not disclosed the material facts before this Court to consider as to whether with the stated facts in the plaint the vessel should be arrested or not. Since there is suppression of material facts, the suit is liable to be rejected.

Submission regarding public law involvement:_

20.Further, the learned counsel for the defendant submitted that only if the contract in question involves public law character, arrest of the vessel can be ordered. In this regard, the learned counsel for the defendant relied upon the unreported judgment delivered by the Division Bench of Gujarat High Court in the case of Crofts Sales and Distribution Ltd., Vs. M.V.Basil (O.J.Appeal No.6 of 2011) decided on 17.0.2011, wherein by considering the judgments of the Hon'ble Supreme Court reported in (2004) 9 SCC 512 (Liverpool and London S.P. & I Association Limited Vs. M.V.Sea Success I and another), it has been held as follows_ We may only record that in the case of Liverpool and London S.P. & I Association Limited Vs. M.V.Sea Success I and another (Supra), the Apex Court on the aspects of Convention has recorded at para 43 about the ratification of the Convention of 1999 by various countries and, therefore, it is not possible for us to entertain the contention that the Convention of 1999 is not in force or not ratified by the requisite number of countries as per Article 14 of the Convention of 1999. However, in the very decision, the Apex Court at paragraphs 59 and 60, has observed thus:-

59.M.V.Elisabeth is an authority for the proposition that the changing global scenario should he kept in mind having regard to the fact that there does not exist any primary act touching the subject and in absence of any domestic legislation to the contrary; if the 1952 Arrest Convention had been applied, although India was not a signatory thereto, there is obviously no reason as to why the 1999 Arrest Convention should not be applied.

60.Application of the 1999 Convention in the process of interpretive changes, however, would be subject to; (1)domestic law which may be enacted by Parliament; and (2)it should be applied only for enforcement of a contract involving public law character. (Emphasis supplied). In view of the above, in the very decision, while observing that 1999 Convention may be applied, it is specifically also observed that the application of such Convention shall be subject to Domestic Law enacted by the Parliament and it should be applied only for the enforcement of contract involving public law character. This means that both the conditions are to be observed while applying the Convention of 1999. The aforesaid leads us to examine the question as to whether the contract in question is involving public law character or not. The contract in question for sale of the particular ship is produced by the plaintiffs themselves with the plaint at Annexure-A and the same is entered into between the plaintiffs and defendant No.3 herein. It is purely a commercial transaction for sale of the ship and, in no way, connected with our nation directly or indirectly, nor is there any operation and/or involvement of the State or any instrumentality of the State as per Article 12 of the Constitution of India. The said contract dated 21.08.2008, upon which the reliance has been placed by the plaintiff, in our view would not attract any public law character, in any manner, whatsoever. In our view, the parameters of the contract involving public law character has to be read as per the legal provisions prevailing in our country. It is by now well settled that the contract may attract public law character, if the State or instrumentality of the State, is directly or indirectly connected therewith in enforcement of the contract or implementation thereof. Further, by virtue of the said contract, if there is any question arises for the sovereignty of the nation, environment, pollution, dispute of sea water etc., where larger or huge or any public interest is involved, such contract may also attract public law character. We do not find any element of public law character in the present contract in question even if the terms and conditions of the contract agreement are considered as they were..."

The learned counsel appearing for the defendant has also relied upon the judgment delivered by the Gujarat High Court in the case of M/s.Unique Trading Co Vs. M.T.Johar Ex.Vukovar, decided on 23.02.2011, and submitted that only if any element of public law character is involved in the contract, the arrest of the vessel could be ordered. But, in the instant case, the transaction between the plaintiff and the defendant is purely a commercial transaction and no public character is involved.

Reply made by the learned counsel for Plaintiff:-

21.Per contra, the learned counsel for the plaintiff submitted that the plaintiff is the buyer of the goods as well as the receiver, who took delivery of the goods after producing the valid Letters of Indemnity from the Charterer as sought by the disponent owner itself. The parties themselves had agreed to the mechanism of using the Charterer's Letters of Indemnity or Bills of Lading, which would be evidence of the receiver's 'title' to the goods, at the time of delivery. Having accepted the Letters of Indemnity as evidence of the Plaintiff's title to goods, the Disponent Owner is estopped from contesting the same in the present litigation. It is well settled legal principle that rejection of the plaint has to be done solely on the basis of the plaint averments. In the instant case, in the plaint the plaintiff has clearly stated that it is the plaintiff who has placed the order.

22.The learned counsel for the plaintiff has further submitted that the very fact that the plaintiff had taken delivery of the goods itself would show that the plaintiff is the owner of the goods. If there is any discrepancy in the particulars furnished in the plaint, the same cannot be a ground for rejection of the plaint. Even if there is any doubt or suspicion in the case of the plaintiff, even that cannot be a ground for rejection of the plaint.

23.With regard to the submission made by the learned counsel for the defendant that the bills of lading produced by the plaintiff does not contain the banker's endorsement, it is the submission of the learned counsel for the plaintiff that the bill of lading by itself is not a contract, but only an evidence of a contract and the surrounding circumstances are to be looked into to ascertain whether the plaintiff has title to the goods. In the instant case, it is at the plaintiff's behest that the consignment was shipped to India and was intended only for sale to the plaintiff.

24.With regard to the submission made by the learned counsel for the defendant that the endorsement made by the Banker on the revers side of the Bills of Lading, Pay/Delivery to the order of KTV Health Food Pvt Ltd as agents for collection would show that the plaintiff may be an agent for some other person, it is the reply of the learned counsel for the plaintiff that mere possibility of a third party being the owner of the goods cannot be a ground for rejection of the plaint.

25.For the submission of the learned counsel for the defendant that unseaworthiness of vessel and delay in delivery of cargo will not give rise to a maritime claim entitling the plaintiff to secure arrest of the vessel, it is the reply of the learned counsel for the plaintiff that the existence of a maritime lien or a claim for liquidated damages is not a pre-requisite for arrest of a ship under Section 443 of the Merchant Shipping Act, 1958, which stipulates arrest of ships even in cases of maritime claims for a breach of contract where no liquidated damages are envisaged and the claim is unascertained. In this regard, the learned counsel for the plaintiff relied upon the judgment reported in (1993) Supp (2) SCC 433 (M.V.Elizabet Vs. Harwan Investment and Trading), wherein it has been held that an arrest of ship can be granted even for a simple breach of contract by a disponent owner.

26.With regard to the submission made by the learned counsel for the defendant that the plaintiff is not entitled to the damages as it is only an estimate of loss incurred by it without any basis, it is the reply of the learned counsel for the plaintiff that in paragraph 18 of the plaint, the plaintiff has stated that the plaintiff has arrived at the said estimate after reference to the prevalent market prices on the date of the expected delivery and at the time of actual delivery and the plaintiff has produced the documentary evidence regarding the transportation charges incurred by it. Hence, the plaintiff is entitled to the damages.

27.With regard to the submission made by the learned counsel for the defendant that the Director of the plaintiff-Company viz., Mr.K.T.V.Kannan has no authority to sue, the learned counsel for the plaintiff submitted that even in the absence of a formal letter of authority or power of attorney having been executed, a person referred to in Order XXIX Rule 1 of CPC can sign and verify the pleadings on behalf of the corporation, by virtue of the office he holds. Mr.K.T.V.Kannan being a Director of the plaintiff-Company would fall squarely within the purview of this provision. In this regard, the learned counsel for the plaintiff relied upon the judgment reported in (1996)6 SCC 660 (United Bank of India Vs. Naresh Kumar).

28.Further, it is submitted by the learned counsel for the plaintiff that non-production of any document would not mandate an automatic rejection of the plaint and that even if the plaintiff has failed to produce a document relied upon in the plaint, the plaintiff has a right to produce such document at the stage of evidence, with the leave of the Court, under Order VII Rule 14(3) of CPC.

29.With regard to the submission made by the learned counsel for the defendant that the plaintiff has suppressed several material facts in the plaint, it is the reply of the learned counsel for the plaintiff that the plaint contains necessary averments to make out a cause of action. The plaint need not disclose all the facts relating to a dispute and it is only required to outline all the material facts which give rise to the cause of action upon which the relief sought is premised. A non-disclosure is, therefore, not struck under Order VII Rule 11 of CPC, unless the non-disclosure amounts to suppression of such material facts. In this regard, the learned counsel for the plaintiff relied upon the judgment reported in 2004(9) SCC 512 (Liverpool & London SP & I Association Limited Vs. M.V.Sea Success I & Anr) and another judgment reported in (2006) 3 SCC 100 [Mayar (H.K) Ltd and others Vs. Owners & Parties, Vessel MV Fortune Express and others).

30.With regard to the submission made by the learned counsel for the defendant, relying upon the judgments in the cases of M.V.Sea Success Case (cited supra) and Croft Sales and Distribution Ltd (Gujarat High Court judgment) (cited supra), that the transaction between the plaintiff and the defendant is purely commercial transaction and no public law character is involved, it is the reply of the learned counsel for the plaintiff that existence of contract involving the government entity or public interest is not a prerequisite for filing the suit. In this regard, the learned counsel for the plaintiff submitted that the interpretation of the Gujarat High Court in the case of Croft Sales and Distribution Ltd (cited supra) is erroneous in law. In fact, the Bombay High Court has set aside the legal stand adopted therein, time and again, in Great Pacific Navigation (Holdings) Corporation Ltd., Vs. M.V.Tongli Yantai, (2011) 113(4) Bom.L.R.2441, holding as follows_ "the words 'it should be applied only for enforcement of a contract involving public law character', certainly do not restrict the applicability of the 1999 Convention only to contracts where the interests of the Government are involved. If it were so, the entire judgment as well as the judgment in M.V.Elisabeth would be completed diluted if not rendered redundant... The words 'public law' are not to be understood as they are in administrative law. Neither of the judgments even remotely indicate the same. They dealt with cases of purely private commercial transactions. The words obviously refer only to the restricted cases which do not involve maritime claims and hence do not permit the invocation of the admiralty jurisdiction. Instances of such cases are those which affect only the internal order and economy of the ship which are generally left to the authority of the flag State.".

The said dictum laid down by the Bombay High Court was upheld by the Division Bench on appeal. Therefore, the submission made by the learned counsel for the defendant that the transaction between the plaintiff and the defendant is purely commercial transaction and no public law character is involved and as such, the plaintiff is not entitled to file the suit, is not correct.

31.With regard to the submission made by the learned counsel for the defendant to refer the dispute to the Arbitration, it is the reply of the learned counsel for the plaintiff that the present dispute is not one which can be referred to arbitration as it is a proceeding in rem against the vessel and admittedly, the defendant has not furnished any security for the claim amount, which is sin qua non for the proceeding to be converted into an in personam proceeding. In this regard, the learned counsel for the plaintiff relied upon the judgment of the Hon'ble Apex Court reported in 2011(5) SCC 532 (Booz Allen & Hamilton Inc. Vs. SBI Home Finance Limited and others).

32.Further the learned counsel for the plaintiff also submitted that the defendant has no locus standi to seek reference of the dispute to the arbitration. The learned counsel for the plaintiff submitted that a perusal of the terms and conditions contained in the Bills of Lading, incorporating the arbitration clause, as contained in Charter Party entered into between M/s.7 Seas Ship Management Pvt Ltd. and Nova Carriers (Singapore) Pvt Ltd, would show that the defendant was not a party, either to the Bills of Lading or to the Charter Party incorporated under the Bills of Lading. A reference to the Arbitration under Section 45 of the Arbitration and Conciliation Act can only be made by one of the parties to the arbitration agreement or any person claimed right through under him. In the instant case, the defendant is neither a party to the arbitration clause contained in the Charter Party nor has he claimed to be seeking reference under one of the parties to the said agreement. In this regard, the learned counsel for the plaintiff relied upon the Judgment reported in Chloro Controls India Ltd Vs. Severn Trent Inc., [(2013) 1 SCC 641]

33.Further, the learned counsel for the plaintiff submitted that Charter party contained an arbitration clause, but not an arbitration agreement. In this regard, the learned counsel for the plaintiff invited the attention of this Court to clause 29 of the Charter party, which has been incorporated under the Bills of Lading, wherein it has been merely stipulated that arbitration, if any, in Singapore under English law. Thus, by relying upon the said clause, the learned counsel for the plaintiff submitted that it is not a binding arbitration agreement, which would mandate a reference under Section 45 of the Arbitration and Conciliation Act. Thus, the learned counsel for the plaintiff sought for dismissal of the application filed by the defendant seeking to refer the dispute to the arbitration.

Reply to the submission of the learned counsel for the plaintiff:-

34.By way of reply, the learned counsel for the defendant submitted that the plaintiff has no locus standi to dispute the reference to arbitration under Section 45 of the Arbitration and Conciliation Act, when it has expressly been admitted by the plaintiff that there exists an arbitration clause in the Charterparty and when there was no whisper much less a full and frank disclosure in the pleadings and application for arrest. Reliance was placed by the learned counsel for the defendant on the judgment reported in Chloro Controls India Ltd Vs. Severn Trent Inc., [(2013) 1 SCC 641], which would show that there is a right on the defendant for referring the dispute to the arbitration under Section 45 of the said Act. Though it is the contention of the learned counsel for the plaintiff that the charterparty contains an arbitration clause, but not an arbitration agreement, the same does not hold good even as per the judgment of the Hon'ble Supreme Court in the case of Chloro Controls India Ltd Vs. Severn Trent Inc., [(2013) 1 SCC 641]. Thus, the learned counsel for the defendant sought for rejection of the plaint and also for referring the matter to arbitration.

35.Heard the submissions made on either side and perused the materials available on record.

36.In view of the submissions made on either side, the following questions fall for consideration_ (1)Whether the plaint is liable to be rejected?

(2)Whether the order of interim arrest passed by this Court on 25.09.2014 in Application No.6124 of 2014 is liable to be vacated?

(3)Whether the prayer made by the defendant to refer the matter to the Arbitrator under Section 45 of the Arbitration and Conciliation Act, could be entertained?

37.Question No.1:- With regard to the rejection of the plaint, the learned counsel for the defendant has made the following submissions_ (1)No cause of action has been made out in the plaint to maintain the suit for the reliefs sought for in the plaint, since there is no whisper with regard to the ownership of the goods.

(2)The plaintiff has not produced the original Bills of Lading at the time of Institution of the suit. Further, the third original Bills of Lading produced by the plaintiff contains the endorsement "Pay/Deliver to the order of KTV Health Food Pvt Ltd as agents for collection" and it does not expressly state that it has been endorsed only to the plaintiff. Hence, there is every possibility for some third party being the real owner of the cargo. The three sale contracts entered into between the plaintiff and Wilmar Trading Pvt Ltd., filed by the plaintiff, do not find a place in the list of documents under Order 7 Rule 14(1) of CPC, nor they have been listed as being produced under Order VII Rule 14(2) of CPC. Even assuming that the said documents were not in the possession of the plaintiff, it has not been disclosed by the plaintiff as to whose possession the same were at the time of filing the suit.

(3)The plaintiff has not approached the court with clean hands, since there is suppression of several material facts in the plaint by the plaintiff.

(4)the loss suffered has only been estimated and not incurred.

(5)The director of the plaintiff-company Mr.K.T.V.Kannan, who has represented the plaintiff, has no authority to sue the defendant.

38.With regard to the first ground raised by the defendant in respect of the title of the plaintiff to the cargo, on a perusal of the averments in the plaint, I find that as contented by the learned counsel for the plaintiff, at para 4 in plaint, it has been clearly stated by the plaintiff as follows_ plaintiff is carrying on business in RBD Palm Olien Edible Oil and the plaintiff's Singapore partner is Wilmar Trading Pvt Ltd. The plaintiff further states that the plaintiff's in the course of business placed an order with the Wilmar Trading Pvt Ltd to export 4,999.956 MTS and 3,299.962 MTS RBD Palm Olein Edible Oil. Therefore, in my considered opinion, necessary averments have been made in the plaint to come to a conclusion that plaintiff is the owner of the goods.

39.To dispute the title of the plaintiff to the goods, the learned counsel for the defendant had submitted that on the date of delivery of cargo, the plaintiff had produced only the letters of indemnity and not the original Bills of Lading. But, I find that as contended by the learned counsel for the plaintiff, the Charterparty itself contains a provision for providing Letters of Indemnity and the relevant portion of the Charteparty is extracted hereunder_ .... Charterer to provide a letter of indemnity (hereinafter referred to as 'LOI') (as per Owner's P & I Club format) to legally effect the change of cargo ownership until such time that the Local bills of lading are surrendered for switching. Further, the plaintiff has proven the accrual of such 'title' in its favour through the endorsement being made in the favour of the plaintiff as contained in the Bills of Lading (third Bills of Lading). In this regard, it would be appropriate to make a reference in Section 1 of Indian Bills of Lading Act, 1856, which evinces that such endorsement on the Bill of lading confers the right to sue upon the plaintiff even before the property in the goods shall pass in his favour. As such, once the endorsement upon the Bills of Lading has been proven by the plaintiff, the defendant cannot challenge the plaintiff's title to the goods or its right to sue. Therefore, I am of the opinion that the averments in the plaint clearly makes out a cause of action; as per the Bills of Lading, the plaintiff is the endorsee, receiver and the buyer of the goods and entitled to seek enforcement of the obligations of the defendant thereunder; therefore, the title has accrued in favour of the plaintiff and the plaintiff is entitled to institute the suit.

Bills of Lading:-

40.It is the next fold of submission of the learned counsel for the defendant that the plaintiff has not filed the original Bills of Lading at the time of filing the suit; only after issuance of notice to produce the Bills of Lading, the plaintiff has produced the third original Bills of Lading during the course of argument, which contains the following endorsement_ 'Pay/delivery to M/s.KTV Health Foods Pvt Ltd., or to order, as agents for collection According to the learned counsel for the defendant, failure on the part of the plaintiff to produce at least one of the three original Bills of Lading, which are all materials and should have been in the exclusive possession of the plaintiff as owner/endorsee/consignee/holder, is fatal to the suit; in other words, non-production of the Bills of Lading, which contains the banker's valid endorsement, at the time of obtaining the interim order of arrest, would amount to suppression of material facts. Thus, according to the learned counsel for the defendant, the plaint is liable to be rejected.

41.But, in my considered opinion, non-production of original Bills of Lading containing the banker's valid endorsement, cannot serve as a ground to reject the plaint. In this regard, a reference could be placed in the judgment, relied upon by the learned counsel for the plaintiff, reported in AIR (3) 1943 Mad 645 (Minor Munuswamy Mudaliar Vs. Chengalvaraya Naicker and others), wherein it has been held as follows_ The only grounds on which a plaint can be rejected are set out in Order VII, Rule 11, Civil Procedure Code. The non-production of a document on which the plaintiff relies is not one of the reasons. In Rule 14 of the same order a plaintiff is required to produce in Court when the plaint is presented any document sued upon which is in his possession or power; but even if the decree be considered to be such a document, the punishment for the non-production of such a document is not the rejection of the plaint, but that set out in Rule 18 of Order VII., viz., that the document shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit..

A reading of the dictum laid down in the above said judgment would show that non-production of a document, on which the plaintiff relies, is not one of the grounds for the rejection of the plaint. The punishment for non-production of such a document is not rejection of plaint, but that the document shall not without the leave of the Court be received in evidence on his behalf at the time of hearing of the suit.

42.In this regard, attention of this Court was drawn by the learned counsel for the plaintiff to the Report submitted by a Committee comprising Justice M.Jagannadha Rao, Chairman, Law Commission of India, Sh.Kapil Sibal and Sh.Arun Jaitley, Senior Advocates, Supreme Court of India. The said Report was submitted to the Hon'ble Supreme Court in the case of Salem Advocates Bar Association Vs. Union of India [2003 (1) SCC 49]. The relevant portion of the same is extracted hereunder_ 11.7 We may also refer to two new Rules in Order 7 Rule 14(3) and Order 18 Rule 1A(3), which have some relevance here.

Order 7 Rule 14(3): A document which ought to be produced in Court by the plaintiff when the plaint is presented or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. Order 8 Rule 1A(3): A document which ought to have been produced in Court by the defendant under this rule, but, it not so produced, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. 11.8 It will be seen that under the above amendments, namely, Order 7 Rule 14(3) and new Order 8 Rule 1A(3), documents not referred to in the plaint can be produced with leave of Court 'at the hearing' of the suit. It is well settled that the 'hearing' of the case commences from the day when the Court applies its mind to the facts of the case and frames issues or receives evidence and the 'hearing' continues till the date of judgment. Order 20 Rule 1 states that after the case has been 'heard', judgment will be pronounced. Thus, the words 'at the hearing' in the new Order 7 Rule 14(3) and Order 8 Rule 1A(3) extend upto date of judgment and these documents can be filed, with leave of Court before judgment is pronounced. The said Rule 14(3) was introduced by the Amendment to the CPC in the year 2002. In fact, the same was a verbatim reproduction of the erstwhile Rule 18 of Order VII which had been repealed by the same amendment with one significant addition: the words 'without the leave of the Court. The addition of the words 'without the leave of the Court', consequently empowers the Court to permit the production of the document even at the stage of hearing. Therefore, the submission made by the learned counsel for the defendant that since the three original Bills of Lading have not been produced by the plaintiff at the time of filing the suit, the plaintiff cannot rely upon the same, as the same amounts to suppression of material facts, cannot be accepted.

43.In fact, the learned counsel for the defendant placed reliance upon the judgment reported in (2012) 8 SCC 707 in the case of Church of Christ Charitable Trust & Educational Charitable Society Vs. Ponniamman Educational Trust in support of his contention that the plaint is liable to be rejected for the sole reason that the plaintiff did not file the originals of the Bills of Lading at the time of the institution of the suit. But, a perusal of the said judgment would show that the Hon'ble Supreme Court has upheld the rejection of the plaint only on the basis of _

(i)power of attorney relied upon by the plaintiff did not authorise the entering into an agreement of sale or to execute sale deed or admit execution before the Registrar;

(ii)despite a plaint averment that one of the defendants was the agreement-holder of the 1st defendant, that agreement was not produced, and neither was the date mentioned in the plaint;

(iii)statutory Forms 47 and 48 of Appendix A were not complied with;

(iv)the plaint did not disclose any privity of contract between the plaintiff and the 1st defendant.

Therefore, the dictum laid down in the above said judgment cannot be made applicable to the present facts of the case.

44.It is further submission of the learned counsel for the defendant that three contracts entered into between the plaintiff and the Wilmar Trading Pvt Ltd, produced by the plaintiff during the course of argument, did not find a place in the list of documents under Order VII Rule 14(1) of CPC., nor they have been listed as being produced under Order VII Rule 14(2) of CPC. As per Order VII Rule 14(2) of CPC, if any document is not in possession of the plaintiff, he must state as to whose possession the same were at the time of filing of the suit; otherwise, the said document cannot be permitted to be filed. Hence, according to the learned counsel for the defendant, on this ground also, the plaint is liable to be rejected. In support of this contention, the learned counsel for the defendant relied upon the judgment reported in Company Cases Vol 70 page 388 in the case of Nibro Ltd Vs. National Insurance Co. Ltd. and another judgment reported in 1998-1 L.W. 195 (Indian Commerce and Industries Private Lit. Vs. Swadharma Swarajya Sangha and Company Cases Vol 98 page 151 in the case of Swadharma Swarajya Sangha Vs. Indian Commerce and Industries Co. Pvt. Ltd.

45.But, in my considered opinion, non-production of a document along with the plaint or non-disclosure of the fact as to whose possession the documents were at the time of filing the suit as required under Order VII Rule 14(2) of CPC, will not serve as a ground to reject the plaint, as held in the judgment reported in AIR (3) 1943 Mad 645 (Minor Munuswamy Mudaliar Vs. Chengalvaraya Naicker and others) that the punishment for a non-production of document along with the plaint or non-disclosure of the fact as to whose possession the documents were at the time of filing of the suit is not the rejection of the plaint.

46.It is the contention of the learned counsel for the defendant that the plaintiff has merely shown only an estimate of loss incurred by it without any basis or justification and such the suit is not maintainable in law. But, on perusal of para 18 in the plaint, I find that the plaintiff has arrived at an estimate after reference to the prevalent market prices on the date of the expected delivery and at the time of actual delivery. Further, the plaintiff has also furnished the documentary evidence regarding the transportation charges incurred by the plaintiff. The question as to whether the plaintiff is entitled to the said damages is a mixed question of law and fact, and the same cannot serve as a ground to reject the plaint.

47.It is the next fold of submission of the learned counsel for the defendant that the plaintiff has neither whispered that the suit has been filed by the plaintiff as neither owner/consingee/endorsee nor holder of Original Bills of Lading; no undertaking has been given by the plaintiff that since the original Bills of Lading were not filed along with the plaint, they would be filing the same on a later date or that it was endorsed in their favour, but not in custody or in whose custody the original bills of lading were; failure on the part of the plaintiff to produce atleast one of the three original bills of lading which are all materials and should have been in the exclusive possession of the plaintiff as owner/endorsee/consignee/holder, is fatal to the suit; the suit cargo was taken delivery by the plaintiff on the basis of the letter of indemnity and not by surrender of the original bills of lading; the plaintiff has suppressed the existence of arbitration clause in the charterparty. Thus, according to the learned counsel for the defendant, there is suppression of material facts in the plaint and therefore, the plaint is liable to be rejected.

48.But, a bare perusal of the plaint, particularly Paragraphs 4, 5, 13, 15 & 16, I find that it is at the plaintiff's behest that the oil has been shipped from Indonesia to Karaikal; that it is the plaintiff who took delivery of the goods from the Karaikal Port; these facts clearly establish that the plaintiff is not a rank stranger to these proceedings and the plaintiff is the buyer, holder and the endorsee on the bill of lading. It is well-settled that the plaint need not disclose all the facts relating to a dispute, and it is only required to outline all the material facts which give rise to the cause of action upon which the relief sought is premised.

49.The Hon'ble Supreme Court has in the case of Liverpool & London SP & I Association Limited Vs. M.V.Sea Success I & Anr reported in 2004 (9) SCC 512 held that rejection of the plaint cannot be done on the basis of insufficiency of averments in the plaint, so long as the plaint discloses a cause of action. The relevant portions in the said Judgment are extracted hereunder_ 146.It may be true that Order 7 Rule 11(a) although authorises the court to reject a plaint on failure on the part of the plaintiff to disclose a cause of action, but the same would not mean that the averments made therein or a document upon which reliance has been placed although discloses a cause of action, the plaint would be rejected on the ground that such averments are not sufficient to prove the facts stated therein for the purpose of obtaining reliefs claimed in the suit. The approach adopted by the High Court, in this behalf, in our opinion, is not correct.

147.In D.Ramachandran Vs. R.V.Janakiraman & Ors [(1999) 3 SCC 267], this Court held:

It is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petitioner are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the court has to find out whether those averments disclose a cause of action or a triable issue as such. The Court cannot probe into the facts on the basis of the controversy raised in the counter. ....

152.So long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars. In Mayar (H.K.) Ltd and others Vs. Owners & Parties, Vessel MV Fortune Express and Others (2006) 3 SCC 100, it has been expressly held that the plaint is to be rejected, not on the basis of the defence raised in the written statement, but only a reading of the plaint averments to ascertain whether it discloses a cause of action. The relevant portion of the said judgment is extracted hereunder_ From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. The dictum laid down in the above said judgments would show that so long as the plaint discloses some cause of action, which requires determination by the Court, the plaint cannot be rejected.

50.In the Judgments relied upon by the learned counsel for the defendant viz., M.V.Rainbow Spring (2003) 3 SLR 362 and M.V.Inai Selasih (2006) 2 SLR 181, I find that there was suppression of material facts. But, that is not the affair in the instant case. In M.V.Rainbow Spring (2003) 3 SLR 362, it has been observed that non-disclosure was of crucial correspondence exchanged between the parties which would prove that the in personam liability attached not to one company but to another and, as such, would have altered the arrest warrant itself. Similarly, in the case of M.V.Inai Selasih (2006) 2 SLR 181, it has been observed that the appellant therein failed to disclose that the respondent therein, in fact, was not a charterer but only an opposite party in an MoU creating a joint venture of sorts (unincorporated co-operation). Thus, the non-disclosure ought to be of a fact which vitiates the very existence of a maritime claim ie., the cause of action.

51.On perusal of another judgment relied upon by the learned counsel for the defendant in Islamic Reublic of Iran Vs. M.V.Mehrab, AIR (2002) Bom 517, I find that the plaintiff therein had approached the Court seeking arrest of vessel after invoking the arbitration clause and while arbitration proceedings were pending in London, without disclosing the pending proceedings in its plaint. I find that in cases, which were relied upon by the learned counsel for the defendant, materials facts were suppressed. But, in the instant case, absolutely I do not find any suppression of material facts, as observed earlier. Insufficient particulars in the plaint would not amount to suppression of material facts. Therefore, the judgments relied upon by the learned counsel for the defendans in this regard, cannot be made applicable to the present facts of the case.

52.It is the next fold of submission of the learned counsel for the defendant that plaint is liable to be rejected as the authorization of the signatory Mr.KTV.Kannan, to verify the same on behalf of the plaintiff-company, has not been supported by any documentary evidence. In this regard, a reference could be placed in the Judgment in the case of United Bank of India Vs. Naresh Kumar (1996) 6 SCC 660, wherein it has been held_ ....Reading Order 6 Rule 14 together with Order 29 Rule 1 of the CPC it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sing and verify the pleadings of behalf of the corporation. Therefore, it is clear that even in the absence of a formal letter of authority or power of attorney having been executed, a person referred to in Order XXIX Rule 1 can sign and verify the pleadings on behalf of the corporation, by virtue of the office he holds. Mr.KTV.Kannan, being a director of the plaintiff-Company, would fall squarely within the purview of this provision. The non-production of any document would not mandate an automatic rejection of the plaint, so long as Order VII Rule 14(3) of CPC itself recognizes that the plaintiff, even where he has failed to produce a document relied upon in the plaint, has a right to produce such document at the stage of evidence with the leave of the Court. But, in the cases relied upon by the learned counsel for the defendant vis., Nibro Ltd Vs. National Insurance Co Ltd., India Commerce & Industries Co.pvt. Ltd Vs. Swadharma Swarjya Sangha, Swadharma Swarajya Sangha Vs. Indian Commerce & Industries Co. Ltd., H.P.Horticultural Produce Mktg & Processing Corp. Ltd., Vs. United India Insurance Co, Schmenger GMBH & Co. Leder Vs. Saddler Shoes Pvt. Ltd., Floating Services Ltd Vs. M.V.San Fransceo Dipalola, no authorization letter was produced even at the stage of trial. Therefore, the said judgments cannot be made applicable to the present facts of the case. Therefore, I am of the opinion, absolutely I do not find any valid ground to reject the plaint. Therefore, the Application No.6260 of 2014 for rejected of the plaint is liable to be dismissed.

53.Question No.2:- It is the submission of the learned counsel for the defendant that unseaworthiness of the vessel and delay in delivery of the cargo will not give raise to maritime claim entitling the plaintiff to secure the arrest of the vessel. But, the judgment relied upon by the learned counsel for the plaintiff reported in (1993) Supp (2) SCC 433 (M.V.Elizabet Vs. Harwan Investment and Trading) gives a fitting answer for this issue. The relevant portion in the said judgment reads as follows_ These provisions (Sections 443 & 444 of the Merchant Shipping Act) relate to detention by reason of damage caused in any part of the world by a foreign ship to property belonging to the Government of India or to an Indian citizen or company. The sections are wide in terms and the expression 'damage' is not necessarily confined to physical damage. Ordinarily damage is caused by physical contact of the ship, such as in collision. But damage can also be caused to property by breach of contract or acts of commission or omission on the part of the carrier or his agents are servants by reason of the negligent operation and management of the vessel.... From a reading of the dictum laid down in the above said judgment, it could be seen that even for simple breach of contract, the arrest of the vessel can be ordered and it need not necessarily be confined to physical damage. The learned counsel for the plaintiff has also relied upon the judgment reported in (2009) 2 CTC 611 in the case of Interaccess Marine Bunkering Vs. K.M.Allauddin, wherein, by considering the decision in M.V.Elisabeth case (cited supra), it was held as follows_ All that the Supreme Court said was that the expression damage done by a ship appearing in Section 443 is so elastic as to include even the breach of obligations created by contracts and that the powers of the Court are not limited by colonial practices. A reading of the judgment of the Supreme Court in M.V.Elisabeth, in totality, would show that there are a wide range of claims, in respect of which an action in rem could be initiated and the arrest of the vessel sought. Therefore, in the light of the dictum laid down in the above said judgments, I am of the opinion that even for a simple breach of contract, arrest of the vessel can be ordered. In the instant case, it is the specific case of the plaintiff that because of the delay in delivery of the cargo, they have suffered heavy loss, which will fall within the purview of the maritime claim. Under such circumstances, the plaintiff is entitled to get an order of arrest of the vessel of the defendant.

54.It is further submitted by the learned counsel for the defendant that only if there is existence of contract involving government entity or public interest, the arrest of the vessel could be ordered. In support of his contention, the learned counsel for the defendant relied upon the judgment delivered by the Gujarat Division Bench, in the case of Crofts Sales and Distribution Ltd., Vs. M.v.Basil, (OJ Appeal No.6 of 2011 in Admiralty Suit NO.10 of 2010 with Civil Application No.73 of 2011, decided on 17.0.2011. The relevant portion in the said judgment reads as follows_ ''.... In view of the above, in the very decision, while observing that 1999 Convention may be applied, it is specifically also observed that the application of such Convention shall be subject to Domestic Law enacted by the Parliament and it should be applied only for the enforcement of contract involving public law character. This means that both the conditions are to be observed while applying the Convention of 1999."

The aforesaid leads us to examine the question as to whether the contract in question is involving public law character or not. The contract in question for sale of the particular ship is produced by the plaintiffs themselves with the plaint at Annexure-A and the same is entered into between the plaintiffs and defendant No.3 herein. It is purely a commercial transaction for sale of the ship and, in no way, connected with our nation directly or indirectly, nor is there any operation and/or involvement of the State or any instrumentality of the State as per Article 12 of the Constitution of India. The said contract dated 21.08.2008, upon which the reliance has been placed by the plaintiff, in our view would not attract any public law character, in any manner, whatsoever. In our view, the parameters of the contract involving public law character has to be read as per the legal provisions prevailing in our country. It is by now well settled that the contract may attract public law character, if the State or instrumentality of the State, is directly or indirectly connected therewith in enforcement of the contract or implementation thereof. Further, by virtue of the said contract, if there is any questionarises for the sovereignty of the nation, environment, pollution, dispute of sea water etc., where larger or huge or any public interest is involved, such contract may also attract public law character. We do not find any element of public law character in the present contract in question even if the terms and conditions of the contract agreement are considered as they were..."

"It is held by a Division Bench that, in the facts and circumstances of the case, since there is no element of public law character in the present contract in question, even if the terms and conditions of the contract are considered as they are, dismissal of the suit under Order 7 Rule 11 of the Code of Civil Procedure was held just and proper...".

Thus, by relying upon the above said judgments, the learned counsel for the defendant submitted that since there is no contract involving public character, the order of arrest of the vessel passed by this Court is not entitled to continue.

55.But, I find that the Bombay High Court in the case of Great Pacific Navigation Holdings Corporation Ltd., Vs. M.T.Tongli Yantai, reported in 2011 SCC on line Bombay 883, decided on 12.07.2011, has not accepted the interpretation given by the Division Bench of the Gujarat High Court in Crofts Sales and Distribution Ltd., Vs. M.v.Basil. The relevant passage from the said judgment is as follows_ the words 'it should be applied only for enforcement of a contract involving public law character', certainly do not restrict the applicability of the 1999 Convention only to contracts where the interests of the Government are involved. If it were so, the entire judgment as well as the judgment in M.V.Elisabeth would be completed diluted if not rendered redundant... The words 'public law' are not to be understood as they are in administrative law. Neither of the judgments even remotely indicate the same. They dealt with cases of purely private commercial transactions. The words obviously refer only to the restricted cases which do not involve maritime claims and hence do not permit the invocation of the admiralty jurisdiction. Instances of such cases are those which affect only the internal order and economy of the ship which are generally left to the authority of the flag State.".

The said dictum was upheld by the Division Bench of the Bombay High Court on appeal.

56.In another judgment reported in (2012) 114 93) Bom. L.R. 1420 ( M.V.Nordlake Vs. Union of India), it has been held by the Divison Bench of Bombay High Court as follows_ We must also deal with the submission made on behalf of the respondent-plaintiff that in M.V.1 Sea Sucession case, the 1999 Convention would be subject to the domestic law which may be enacted by Parliament and that the Convention should be applied only for an enforcement of the contract involving public law character. The observations in the said decision would apply where the International Convention provides for a law which was not hitherto the principle in International Common Law. But where the International Convention merely adopts the pre-existing International Common Law (as enunciate din Halsbury's Law of England and various commentaries on admiralty jurisdiction as referred to in this Judgment, the caveat sounded in para 60 of the judgment in M.V.1 Sea Success case would not apply.'' A reading of the dictum laid down in the said judgment would show that the said principle should be applied only for the contracts which involve public law character. The words 'public law' refer only to the restricted cases which do not involve maritime claims. In the instant case, the suit has been filed seeking arrest of the vessel under Section 443 of the Merchant Shipping Act, 1958 and the limitation of 'public law' character and indeed the 1999 Arrest Convention itself, would not be applicable to domestic legislation as held in the case of M.V.Nordlake Vs. Union of India (cited supra). Therefore, the submission made by the learned counsel for the defendant that the since there is no existence of public law character in the contract in the present case, the arrest of the vessel cannot be made, is liable to be rejected.

57.Question No.3:- With regard to referring the matter to the arbitration, the submissions of the learned counsel for the plaintiff are on two folds_ (1)the defendant has no locus standi to seek to refer the matter to the Arbitration; (2)Charter party is only clause and not an agreement.

58.It is the submission of the learned counsel for the plaintiff that the bills of lading incorporate the arbitration clause as contained in the Charter Party entered into between the M/s.7 Seas Ship Management Pvt Ltd and Nova Carriers (Singapore) Pvt Ltd. The defendant was not a party, either to the Bills of Lading or to the Charter Party incorporated in the Bills of Lading. Therefore, the defendant has no locus standi to seek for referring the dispute to the Arbitration.

59.It is yet another submission of the learned counsel for the applicant that Clause 29 of the Charterparty, which has been incorporated in the Bills of Lading, merely stipulates that Arbitration, if any, in Singapore under English Law. The words envisaged in Clause 29 cannot be construed as a binding arbitration agreement. The defendant has also failed to produce any contractual provision as beign the arbitration agreement that is binding upon the parties. Therefore, the application is liable to be dismissed.

60.Whereas it is the reply of the learned counsel for the defendant that the reference to arbitration under Section 45 of the Arbitration Act can only be made by one of the parties to the arbitration agreement or any person claiming through or under him. The demise charterer has been brought into the proceedings filed by the plaintiff as it is 'person interested in the proceedings' to appear and defend and is definitely claiming through the party from whom the subject vessel has been chartered with. Therefore, it is incorrect to state that the defendant has no locus standi to seek for referring the matter to the arbitration.

61.Similarly, it is further reply of the learned counsel for the defendant that the plaintiff itself has accepted that there is an arbitration clause in the contract. Though the learned counsel for the plaintiff stated that there is no arbitration agreement, the same does not hold good in view of the fact that there was no full disclosure of even the said arbitration clause. In this regard, the learned counsel for the defendant relied upon the very same judgment relied upon by the learned counsel for the plaintiff reported in Chloro Controls India Ltd., Vs. Severn Trent Inc., (2013) 1 SCC 641.

62.But, irrespective of the submissions made on either side, I am of the opinion that the claim has been made by the plaintiff only as against the vessel of the defendant. If any other person, who is having interest and claim as against the vessel, can always intervene in the matter. Therefore, it is an action in rem. The action in rem will be converted into an action in personam, if the owner of the vessel subjects to the jurisdiction and obtains the release of the vessel by depositing the security. Therefore, in the event of the owner of the vessel obtains release of the vessel by depositing the security, the action in rem will be converted into action in personam. Only in that situation, the question of referring the dispute to the arbitration would arise. Since this Court has already come to the conclusion that there is a maritime claim as against the defendant by the plaintiff, the interim order of arrest of vessel cannot be interfered with. The question of referring the matter to the arbitration does not arise at this stage. Hence, at this juncture, there is no need for this Court to deal with the question as to whether the defendant has locus standi to seek for referring the matter to the arbitration or as to whether there is a valid arbitration agreement. However, since this Court has already come to the conclusion that there is a maritime claim as against the defendant's vessel by the plaintiff and the plaintiff is entitled for interim arrest of the vessel, consequently the application for referring the matter to the arbitration is liable to be dismissed.

63.For the foregoing reasons, the Application Nos.6259 to 6261 of 2014 are dismissed. Interim order dated 25.09.2014 passed in A.No.6124 of 2014 is made absolute.

23.12.2014 Internet : Yes Index : Yes ssv R.SUBBIAH, J., ssv A.Nos.6124, 6259, 6260 & 6261 of 2014 in C.S.No.631 of 2014 23.12.2014

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