Document Fragment View

Matching Fragments

8. In response to the notice issued by this Court, the plaintiff has filed the reply to the Civil Application and has denied the contentions raised by the applicant. The applicant has contended that as far as the assertion of the applicant as regards ownership is concerned, the same is issue of fact which can only be determined at the trial stage after the evidence is led. It is alleged that the documents have been created and transactions have been backdated to make out the case that the applicant is the owner of the vessel. It is contended by the plaintiff that the applicant has not produced any documents to show the alleged transaction of sale from HOM to M/s. North Star Marine Limited and it is asserted that the defendant C/AS/22/2018 IA ORDER vessel was registered with Togolese Maritime Authority under the ownership of HOM. It is contended that M/s. North Star Marine Limited has no title over the vessel and therefore, the question of applicant obtaining title over the defendant vessel cannot arise. It is also contended that no document is produced, such as, agreement for sale or proof of payment by the applicant to M/s. North Star Marine Limited. It is also contended that the bill of sale dated 7.6.2018 produced by the applicant appears to be a got up document created for the purpose of this litigation and the same is backdated and the same is neither notarized nor apostilled as required in law. It is also alleged that the Provisional Registration Certificate dated 8.6.2018 issued by Registry of Comoros appears to be sham and no deletion certificate from the previous Registry is obtained. It is alleged by the plaintiff that on making inquiry, it has been informed by Togolese Registry that the vessel was still registered with Togolese Registry on 8.6.2018. It is also alleged by the plaintiff that usually, the registration certificate is valid for 2 months, whereas in the present case, it has validity of 6 months. The plaintiff has also relied upon the copy of the port declaration filed by the defendant vessel at Oman dated 8.6.2018 which shows that the flag C/AS/22/2018 IA ORDER of the defendant ship was of Togolese and the owner was shown as Wadi­Al­Neel. It is also contended by the plaintiff that M/s. North Star Marine Limited and the applicant are alter egos and relationship between both are such that the sale which is alleged is sham sale. It is alleged that the applicant is attempting to perpetrate a fraud on this Court and at the very least there are a host of triable issues which arise. It is contended that whether the applicant was the owner of the vessel on the date of the arrest is one which can be decided only after the evidence is led. The applicant has failed to make out a prima facie case for setting aside the order of arrest at the interim stage. It is contended that if the vessel is allowed to be beached, the plaintiff will be irretrievably prejudiced, inasmuch as, it will be unsecured for its legitimate maritime claim and the same would render the suit infructuous. The plaintiff has denied all the contentions raised in the application. It is contended that the application is unmeritorious and frivolous. It is asserted that the plaintiff admittedly repaired the vessel in respect of which payments are outstanding and the same is undisputed. It is contended by the plaintiff on the basis of the same that the plaintiff has a strong prima facie case in its favour C/AS/22/2018 IA ORDER and there is no question of vacating the orders of arrest at interlocutory stage and the applicant is free to raise objections at the trial of the Suit and therefore, has contended that the application deserves to be dismissed.

26. Mr. Saurabh N. Soparkar, learned counsel for the applicant has, in his rejoinder, made further submissions as under:­

27. Mr. Soparkar, learned counsel for the applicant, in rejoinder, has reiterated the contentions raised in the application and has contended that the authority cited by the plaintiff on Law of Ship Mortgages by David Osborne, 2nd Edition is not applicable to the present case. It was contended that the commentary contemplates a situation, where the parties by their action create a consensual security which are of 3 types, (i) legal mortgage, (ii) equitable mortgage, and (iii) equitable charge. However, in the present case, the plaintiff's own document does not show creation of any charge or mortgage (either registered or otherwise) or charge on any of the vessel. It was contended that in C/AS/22/2018 IA ORDER the present case, the loan agreement does not contemplate any transfer of title at all and therefore, the same would not qualify as legal mortgage. Referring to Paragraph 3.1.4 of the said authority, it was further contended that in facts of this case, it is not even an equitable mortgage. It was further contended that the loan agreement does not contemplate conferring any such right of realization by judicial process upon the plaintiff and therefore, the same would not qualify as an equitable charge. It was further contended that even without prejudice to the aforesaid, the loan agreement in question contemplates a desire to create a charge on a future date and thus, there is no consensual creation of any form of security as contemplated in the commentary. Relying upon the loan agreement, it was contended that in the instant case, Wadi­Al­Neel is admittedly not the owner of any of the vessels, but is only a manager and as a manager, it possess no authority whatsoever to create any such lien on the same and therefore, it was contended that Wadi­Al­ Neel could never create much less consent creating charge or lien on the said vessels. It was further contended that the Act is a code by itself and anything not contemplated therein cannot be imported from English law. It was further contended that the applicant C/AS/22/2018 IA ORDER has produced all relevant documents evidencing the title to M/s. North Star Marine Limited to the defendant - vessel. It was further contended that on a submission raised by the plaintiff, the applicant vide email dated 29.7.2018 requested M/s. North Star Marine Limited for relevant documents and to answer various queries and the same is responded by M/s. North Star Marine Limited vide its email dated 29.7.2018 and has also brought the applicant with a copy of the bill of sale dated 17.4.2018 issued by HOM in favour of M/s. North Star Marine Limited. It was further contended that the said document shows the sale of the defendant - vessel and transfer of title to M/s. North Star Marine Limited. It was further contended that the applicant has produced a copy of the Provisional Registration Certificate on 7.6.2018 issued by the Union of Comoros showing M/s. North Star Marine Limited to be the owner of the defendant - vessel. It was contended that the said document is an independent document issued by a sovereign country which can never be backdated or said to be a sham document. It was contended that the bill of sale coupled with the Provisional Registration Certificate issued by the Union of Comoros established beyond doubt that the ownership of the defendant - vessel had shifted from HOM to C/AS/22/2018 IA ORDER M/s. North Star Marine Limited on 17.4.2018 which was entered into the Registry of Comoros on 7.6.2018 and thus, on the date of arrest, HOM was no longer the owner of the defendant - vessel. It was further contended that Provisional Registration Certificate cannot be issued without or in absence of a bill of sale and as the Provisional Registration Certificate is issued on 7.6.2018, the bill of sale has to be prior to the same and therefore, it was contended that the allegation of backdating of bill of sale dated 17.4.2018 issued by HOM to M/s. North Star Marine Limited is devoid of any merit and without any material particulars or substance to that effect and it is nothing but bald allegation without any basis or any supporting documents to the contrary. It was contended that on the contrary, the registration requirement of the Union of Comoros produced by the plaintiff in the affidavit­in­reply shows that a copy of the bill of sale is a sine qua non for registration of the defendant