Oceanic Dolphin Shipping And ... vs Mv Manaimo 9748849 A Vessel
2023 Latest Caselaw 2285 AP

          HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
                    MAIN CASE : COMS No.1 of 2023
                          PROCEEDING SHEET

S.    Date                               ORDER                             OFFICE
                                                                            NOTE
No

01 25.04.2023

SRS,J

COMS No.1 of 2023

Heard Sri Sai Sanjay Suraneni, learned

counsel for plaintiff.

Issue summons to the defendants.

List on 14.06.2023.

___________ SRS,J

I.A.No.1 of 2023

Plaintiff filed the above Commercial Suit

seeking the following relief:

a) That the defendant Vessel - MV MANA (IMO No.9748849) along with her hull, engines, tackle, machinery, boats, apparel and other paraphernalia at present lying in the port and harbor of Kakinada Port be ordered to be arrested;

b) That the defendant Vessel - MV MANA (IMO No.9748849) along with her hull, engines, tackle, machinery, boats, apparel and other paraphernalia at present lying in the port and harbor of Kakinada Port be ordered to be detained, condemned, and sold under orders and directions of this Court and the sale proceeds thereof, be applied towards the satisfaction of the plaintiff's claim in the suit, or another appropriate proceeding;

c) For judgment and decree in favour of the plaintiff and against the Defendant Vessel for an aggregate sum of INR 1,01,27,193/-

(Indian National Rupees One Crore One Lakh Twenty Seven Thousand One Hundred and Ninety Three only) along with interest @18% p.a. from the date of the institution of the suit till payment/ realization together with costs;

d) Additional costs of the suit may otherwise be provided;

Interlocutory Application was filed under

Order XXXIX Rule 1 and 2 of CPC. In the

affidavit, it was contended, inter alia, that plaintiff

was appointed as "Owners Protective Agent" on

22.04.2022 for the defendant vessel during her

call at Deendayal Port between 29.04.2022 to

20.05.2022.

Plaintiff was appointed as 'Owners

Protective Agent' by Al Rabih General Trading

FZC by sending e-mail dated 21.04.2022.

Plaintiff was also appointed to clean cargo

holds and supply cargo hold paints and thinner.

Plaintiff was also appointed to provide necessary

support to the cargo hold surveyor during the

inspection of cargo holds before the

commencement of loading operations.

Defendant Vessel arrived at Deendayal Port,

outer anchorage on 29.04.2022. On 29.04.2022

and 02.05.2022, plaintiff supplied paint, thinner,

cotton rags, scaffolding, aluminum and paint

rollers to the defendant vessel for chipping rust

and re-painting her cargo holds. Plaintiff also

supplied labour and necessary equipment for

washing the cargo holds, chipping the rust of

cargo holds and re-painting the same. Plaintiff

also arranged the transport of labour and

equipment from shore to the defendant vessel at

outer anchorage. Delivery challans dated

29.04.2022 and 02.05.2022 signed and stamped

by Master/Chief Officer are filed as Exhibit-C.

On 29.04.2022 and 02.05.2022, the labour

supplied by plaintiff cleaned the cargo holds,

chipped the rust, re-painted the holds and made

the same fit for receiving Wheat. Plaintiff also

provided necessary assistance to inspectors/

surveyors authorized to inspect/survey cargo

holds. Plaintiff also arranged the necessary

permission from Mercantile Marine Department,

Kandla, for commencing loading.

Defendant Vessel berthed on 09.05.2022

under priority group. Loading was commenced

on 09.05.2022. Loading operations were

suspended briefly on 13.05.2022 as defendant

vessel was required to shift to a deep draft berth

for further loading. On 17.05.2022, the

Directorate General, Foreign Trade, granted

permission to the defendant vessel to conclude its

cargo operations and sail out from Kandla.

Loading operations of defendant vessel were

concluded on 19.05.2022 and the same sailed out

from Deendayal Port on 20.05.2022.

Plaintiff as protective agent of defendant

vessel was liable to make payments of port dues

(berth charges, pilotage etc.) to the port

authorities. The port authorities issued notice

dated 08.10.2022 demanding the plaintiff to

make payments. The port authorities issued

another notice dated 13.01.2023 to pay

outstanding amount of Rs.56,83,169/- against

penal berth birth charges within time limit of 15

days. In the notice dated 13.02.2023, it was

stated that port authorities may suspend

Stevedoring Licence and Cancellation of

Stevedoring Authorization will be initiated against

the plaintiff. Another notice dated 06.04.2023

was issued to the plaintiff to clear the

outstanding amount of Rs.56,83,169/- within

seven days.

Since the amount was not paid, plaintiff

issued e-mail dated 03.12.2022 to Al Rabih

General Trading FZC.

On 05.04.2023, it was communicated to the

plaintiff, that Stevedores Shantilal Shipping &

Chartering Pvt. Ltd., are liable to clear the dues,

but not by Al Rabih General Trading FZC.

Port authorities are demanding the amount

from the plaintiff, as the plaintiff has given

undertaken, which was filed at Page No.70 of

material papers along with COMS No.1 of 2023.

Hence, the plaintiff filed the above commercial

suit for recovery of dues and for arrest of

defendant vessel - MV MANA along with her hull,

engines, tackle, machinery, boats, apparel and

other paraphernalia at present lying in the port

and harbor of Kakinada Port.

As per the vessel schedule filed along with

plaint, the defendant vessel is awaiting

anchorage.

Heard Sri Sai Sanjay Suraneni learned

counsel appearing for the petitioner.

In Videsh Sanchar Nigam Ltd. Vs.

M.V.Kapitan Kud and others [(1996) 7 SCC

127], the Apex Court held that the admiralty

action is an action in rem.

The material papers filed along with the

suit, prima facie would indicate that petitioner

was appointed as Owners Protective Agent by Al

Rabih General Trading FZC, owner of the 1st

respondent vessel. Pursuant to the said

appointment, petitioner performed the

obligations. In fact, petitioner also gave

undertaking of Penal Berth Hire for the Vessel MV

MANA. Petitioner also supplied material as

indicated supra and extended other services.

Petitioner is claiming Rs.1,01,27,193/- with

interest at 18% per annum.

Petitioner, by placing material before the

Court, prima facie proved its case qua the interim

relief sought for in the I.A.

Considering the nature of the claim as well

as the circumstances and factors set out by the

petitioner against the 1st respondent, if no facility

is available to secure realization of the amounts

due as claimed by the petitioner, the petitioner

will suffer any amount of hardship and realization

of the suit amount even if the suit is decreed,

appears to be a distant possibility. In the

circumstances, finding justification in the request

of the petitioner prima facie, arrest of the 1st

respondent shall be ordered.

Issue warrant of arrest against the 1st

respondent vessel MV MANA (IMO 9748849) along

with her hull, engines, tackle, machinery, boats,

apparel and other paraphernalia, at present, lying

in the port and harbor of Kakinada Port, in the

event of the 1st respondent failing to furnish

security for INR 1,01,27,193/- within 48 hours of

service of warrant of arrest on the master of the

1st respondent vessel.

Registry is directed to issue this warrant of

arrest to be executed through the III Additional

District Court, Kakinada. The learned III

Additional District Judge, Kakinada shall entrust

this warrant of arrest to a Field Assistant

nominated for this purpose. The Port authorities

of Kakinada Port Trust, namely the 2nd

respondent and all the concerned including the

master of the 1st respondent vessel shall give

access to the Field Assistant of the III Additional

District Court, Kakinada for execution of this

warrant.

In the event the security as stated above is

offered, the 1st respondent vessel is at liberty to

sail out of the territorial waters of India.

Learned counsel for the petitioner/plaintiff

is permitted to serve a copy of this order on the

master of the 1st respondent vessel at Kakinada

Port including on the authorities of the 2nd

respondent Port as well as forward the same to

the 1st respondent by e-mail or fax and file proof

of service by 01.05.2023.

___________ SRS,J Note: Furnish copy today B/O PVD