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Dallah Albaraka Investment Co. Ltd. vs Mt "Symphony 1" Ex. Mt "Arabian Lady And ... on 18 July, 2005
cites
The Merchant Shipping Act, 1958
Section 22 in Admiralty Court Act, 1861 [Entire Act]
Colonial Courts of Admiralty Act, 1890
Dimitrios Paizis And Ors. vs Motor Vessel "Nicos" And Ors. on 12 January, 1983
I also hold that the judgment of the learned Single Judge in the case of Dimitrios Paizis and Ors. v. Motor Vessel "Nicos" and Ors. (supra) is no longer a good law and impliedly overruled by the judgment of the Apex Court in the case of M.V. Elisabeth and others (supra).
Hari Shanker Jain vs Sonia Gandhi on 12 September, 2001
In the present case once the parties have agreed that the transaction is governed by the English Law the said English Law would apply to the substantive transaction and if the suit is filed in India then the procedural law would be applicable as contemplated under the provisions of the Admiralty Court Act, 1861. I am of the opinion that merely by filing a suit in India because it has a jurisdiction to entertain the claim by virtue of the provisions of Section 22 (1) (ix) of the Supreme Court of Judicature (Consolidation) Act, 1925, this Court would not be entitled to apply Indian Law to the substantive part of the transaction which is governed by the English Law. I am, therefore, of the opinion that the contention of the learned counsel for the defendants is right and justified that the plaintiffs have not pleaded in the suit the fact that the said transaction is governed by the English Law and it is the English Law under which the plaintiffs are entitled to any such decrees as prayed. The judgment of the Apex Court in the case of Hari Shankar Jain v. Sonia Gandhi (supra) is clear on the aforesaid aspect that if such a pleading is absent and there is no evidence led on this aspect then the suit must fail. However, the learned counsel for the plaintiffs has inter alia contended that the defendants have not raised the plea pertaining to application of English Law or otherwise and thus, it is not now open for them to contend that the suit is not maintainable because the same is governed by the English Law and there is no pleading in that behalf. The said submission in my opinion is required to be rejected. Firstly, because the issue of maintainability is an issue of law. An issue of maintainability has been raised and the issue of maintainability is not required to be pleaded since it is an issue of law and since the absence of detailed plea about maintainability of the suit would not affect the rights of the defendants to resist the suit on the ground of maintainability. In view of the aforesaid, I hold that the suit is not maintainable on both the aforesaid grounds, namely, that there is no substantive prayer for a decree of mortgage as against the defendant no. 1 and also that there is no pleadings, averments and evidence pertaining to the fact that the transaction is governed by the English Law and in view thereof I pass the following order.
Section 11 in The Merchant Shipping Act, 1958 [Entire Act]
The Code of Civil Procedure, 1908
Kamalakar Mahadev Bhagat vs Scindia Steam Navigation Co. Ltd. on 5 August, 1960
Closer home, it was observed in Kamalakar v. Scindia Steam Navigation Co. that the 1961 Act is complementary to the 1840 Act. It is also not without its own significance that while S. 31 of the 1861 Act expressly repealed Act No. HEN-4C-11, the Act of 1840 was not repealed but on the contrary extended and improved by the later 1861 Act.
State Of Kerala vs Cochin Chemical Refineries Ltd on 26 March, 1968
25. Reliance was also placed by Mr. Meghani on State of Kerala v. Cochin Chemical Refineries where it was held that failure of a mortgagee to advance money undertaken by him does not invalidate the mortgage transaction. Mr. Meghani also relied on a passage from Salmond on Jurisprudence, 12th Edn. at page 115 that -