Gujarat High Court
Prime vs Bunkers
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
AS/15/2012 7/ 7 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD ADMIRALITY SUIT No. 15 of 2012 ========================================================= PRIME TRANSPORT LTD BVI - Plaintiff(s) Versus BUNKERS ON BOARD GOREIGN VESSEL M.V. NEMTAS 4 & ORS - Defendant(s) ========================================================= Appearance : MS PAURAMI B SHETH for Plaintiff(s) : 1, None for Defendant(s) : 1 - 3. ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 28/09/2012 ORAL ORDER
1. Heard Ms.Paurami B. Sheth, learned advocate for the plaintiff. It is submitted that the plaintiff is a Company incorporated in British Virgin Island and having its Registered Office at the address mentioned in the cause-title. The plaintiff is engaged in shipping/transport business. Defendant No.1 are the Bunkers on board the vessel M.V.Nemtas-4, which is presently time chartered by defendant No.2 (Seatrek Trans Pte Limited) and is carrying bunkers owned and belonging to defendant No.2. It is further submitted that the defendant vessel M.V.Nemtas-4, is flying a foreign flag. That the plaintiff is not seeking any orders of arrest of the vessel M.V.Nemtas-4. However, the plaintiff is seeking the arrest of the Bunkers on board the vessel, as defendant No.2 is liable for the claim of the plaintiff. It is further submitted that the claim of the plaintiff is a maritime claim for breach of a contract for use and hire of a ship/vessel. The plaintiff has commenced Arbitration proceedings in London and have also filed their claim submission. However, the arrest of the bunkers is sought in order to secure the claim in the Arbitration. It is further submitted that the vessel M.V.Nemtas-4 is presently at the port and harbour of Bhavnagar where she is discharging her Cargo and the Bunkers on board the said vessel are, therefore, within the Admiralty jurisdiction of this Court. Defendant No.2, who owns the Bunkers is a foreign Company and does not have any property in India to satisfy the claim of the plaintiff. In the event that the vessel M.V.Nemtas-4, which is allowed to leave the territorial water of India, the suit of the plaintiff would be rendered infructuous. The vessel M.V.Nemtas-4 is likely to sail out of Indian territorial waters after discharging her Cargo.
2. Having heard Ms.Paurami B. Sheth, learned advocate for the plaintiff and on perusal of the material on record, it is prima-facie established by the plaintiff that it is necessary to arrest the Bunkers on board the vessel M.V.Nemtas-4 that is presently lying in the port/harbour at Bhavnagar, in Indian territorial waters, to secure the Arbitration proceedings.
3. Learned advocate for the plaintiff has placed reliance upon the following judgments in support of the submission that arrest of vessel/bunker can be effected as a security towards Arbitration proceedings:
(1) M.V.Elisabeth and others Vs. Harwan Investment & Trading Private Limited, Hanoekar House, Swatontapeth, Vasco-De Gama, Goa, reported in AIR 1993 Supreme Court 1014.
(2) Islamic Republic of Iran Vs. M.V. Mehrab and others reported in AIR 2002 BOMBAY 517 (particularly paragraph 18 thereof).
(3) Order of this Court dated 14.07.2006 passed in Admirality Suit No.4/2006.
4. Upon consideration of the material on record, the following order is passed :
(a) Upon hearing Ms.Paurami B. Sheth, learned advocate for the plaintiff and upon reading the plaint herein declared at Ahmedabad on 27.09.2012 filed by the advocate for the plaintiff herein and the affidavit of Shri Jaidev Bhagwandas Punjabi, Constituted Attorney of the plaintiff above-named, affirmed on 27.09.2012 AND UPON HEARING counsel for the plaintiff AND UPON THE PLAINTIFF giving an undertaking in writing to the Registrar of this Court to pay such sums by way of damages as this Court may award as compensation in the event of the defendants and/or any party sustaining prejudice by this order, I DO ORDER THAT the Registrar of this Court DO ISSUE a warrant for the arrest of the BUNKERS ON BOARD vessel, M.V. NEMTAS 4, at present lying at the Port and Harbour of Bhavnagar and that the Warrant of Arrest be executed at any time of the day or night or on Sundays or holidays and I DO FURTHER ORDER that the Port Officer at Bhavnagar and the Customs Authorities at Bhavnagar do effect the arrest, seizure or detention of the BUNKERS ON BOARD vessel, M.V. NEMTAS 4 at the Port of Bhavnagar or such other place wherever she may be within the territorial waters of India AND I do further order that in the event of the defendant and/or those interested in her depositing in this Court a sum of USD 3,71,000/- together with interest thereon from the date of this suit till payment and/or realization, the said Warrant of Arrest shall not be executed against the BUNKERS ON BOARD vessel, M.V.NEMTAS 4.
(b) The Port Officer and the Customs Authorities at Bhavnagar are directed to arrest the BUNKERS ON BOARD vessel M.V. NEMTAS 4 at present lying at Port of Bhavnagar within the territorial waters of India and to keep the vessel under arrest until further orders of this Court. It is further ordered that the Port Officer and the Customs Officer at Bhavnagar shall render all assistance to the plaintiff or its representative in effecting the warrant of arrest of the BUNKERS ON BOARD vessel, M.V. NEMTAS 4.
(c) It is open for the plaintiff's advocate to communicate the above order by fax message/Email at their own cost and the authorities are directed to act on the Fax/Email message.
(d) It is open for the plaintiff's advocate to serve notice to defendant No.2 by Email and Courier service at their cost.
(e) The undertaking filed by Shri Jaidev Bhagwandas Punjabi, Constituted Attorney of the plaintiff is taken on record.
(f) Notice to the defendants returnable on 09.10.2012. It is made clear that it will be open for the defendant to approach this Court even prior to the returnable date with adequate notice to the plaintiff.
(g) Office is directed to serve the warrant of arrest on the Master of the vessel M.V.NEMTAS-4 for arrest of BUNKERS ON BOARD vessel, M.V. NEMTAS 4 or through the agent of the vessel M.V.NEMTAS 4 and send copy thereof to Port and Customs Authorities at Bhavnagar.
(h) It is hereby clarified that the vessel M.V.NEMTAS 4 has not been placed under arrest, and only Bunkers on Board the said vessel are placed under arrest. The vessel is free to sail at any time, without the said Bunkers.
(i) Direct service is permitted today.
(Smt. Abhilasha Kumari, J.) Gaurav+