Bombay High Court
Marco Polo Shipyard Pte Ltd vs Mt Ark Prestige on 2 August, 2021
Bench: B.P. Colabawalla
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN ITS COMMERCIAL DIVISION
ADMIRALTY & VICE-ADMIRALTY JURISDICTION
ANJALI Digitally signed by
ANJALI TUSHAR
TUSHAR ASWALE
Date: 2021.08.02
JUDGE'S ORDER (L) No 16709 OF 2021
ASWALE 13:56:53 +0530
IN
COMMERCIAL ADMIRALTY SUIT (L) No 16706 OF 2021
Marco Polo Shipyard Pte Ltd ... Plaintiff
v/s
MT Ark Prestige (IMO: 9116242) ... Defendant
Shweta Sadanandan i/b Mr Ashwin Shanker for the Plaintiff.
None for the Defendant.
CORAM : B.P. COLABAWALLA, J
MONDAY, 2ND AUGUST, 2021
P.C.:
1 Mentioned by email/praecipe. Not on board. Taken on board.
2 At the outset, the learned Counsel for the Plaintiff has informed
me that there is no valid/active caveat against arrest of the Defendant Vessel
in the Caveat Warrant Book.
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3 The captioned Judge's Order has been moved ex parte. The
urgent relief sought is the arrest of the Defendant Vessel. By the present
suit, the Plaintiff seeks a judgment and decree against the Defendant Vessel,
and the arrest, sequestration, condemnation and sale of the Defendant
Vessel, for securing and/or satisfying the Plaintiff's aggregate claim of USD
553,096.65, inclusive of costs.
4 Vide Job Code RC402/21, the Plaintiff provided repair services to
the Defendant Vessel. The Defendant Vessel was to be delivered back to the
owner by the Plaintiff upon 50% of the total repair charges of USD 690,000
being paid prior to delivery and the remaining 50% within one month of the
delivery date.
5 It is the Plaintiff's case that the Defendant made only a part
payment out of the frst 50% and USD 690,000 out of the frst 50% amount
was kept outstanding. The Plaintiff and Defendant/owner entered into an
Agreement dated 27.04.2021 wherein the Defendant/owner agreed to make
payment of the outstanding USD 69,000 out of the frst 50% amount by
04.05.2021 and the remaining USD 345,000 by 27.05.2021. The Defendant
Vessel was delivered on 27.04.2021. The Plaintiff contends that the
Defendant/owner failed in making payment on 04.05.2021 and 27.05.2021
in terms of the Agreement, despite issuing a letter of confrmation. The
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Plaintiff further states that despite follow-ups neither a reply from the
Defendant nor payment of these outstanding amounts was forthcoming.
6 The Plaintiff's case is that it has a maritime claim against the
vessel on account of repair services rendered to the Defendant Vessel.
Inclusive of interest on the outstanding amounts and costs, the Plaintiff has a
claim of USD 553,096.65 comprising of USD 453,096.65 (inclusive of interst
@ 12% p.a. till date) and USD 100,000/- towards costs.
7 I have heard the learned Counsel appearing on behalf of the
Plaintiff and also considered the averments made in the plaint. On a reading
of the plaint and the exhibits thereto, I fnd that a prima facie case for arrest
of the Defendant Vessel is made out. In the present case, prima facie I also
fnd that the claim in the Plaint is in the nature of a maritime claim.
8 The Plaintiff's claim arises out of any construction,
reconstruction, repair, converting or equipping of the vessel. The claim
therefore, falls within the meaning of a maritime claim as defned in Section
4(1)(m) of the Admiralty (Jurisdiction & Settlement of Maritime Claims)
Act, 2017.
9 In these circumstances, I fnd that there is a cause of action in
favour of the Plaintiff and that the vessel being at Mumbai port is within the
admiralty jurisdiction of this Court. As stated above, the Plaintiff has made
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out a prima facie case. I am also satisfed that the balance of convenience lies
with the Plaintiff to whom, irreversible prejudice would be caused if the
reliefs sought in the Judge's Order were to be denied. Accordingly, I order
and direct the arrest of the Defendant Vessel MT Ark Prestige along with her
hull, tackle, engines, machinery, boats, bunkers, equipment, paraphernalia
and other appurtenances presently at anchorage at the port and harbour of
Mumbai or wherever she is within the territorial waters of India until the
satisfaction of the Plaintiff's claim to the extent of USD 468,096.65. The
reason I have reduced the amount is because I have, for the time being,
reduced the amount of costs from USD 100,000/- to USD 15,000/-.
10 I have seen the Judge's Order and it seems to be in the proper
form and with the appropriate contents. I therefore make an order in terms
of the Judge's Order in the facts and circumstances of the present case and
have signed the same separately. However, in view of this order, it is clarifed
that in the Judge's order the fgure "USD 553,096.65" shall be read as "USD
468,096.65".
11 The undertaking of the Plaintiff's Advocate that the warrant of
arrest will be served upon the Defendant Vessel within a period of six weeks
from today is accepted.
12 After service of the warrant of arrest, if the Defendant Vessel is
not released from arrest by furnishing security or bail amount within 15
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days, or an application for vacating the order of arrest is not fled, or the
Defendant Vessel is found to be abandoned by the person in-charge of the
vessel or owner, or is found unmanned, then, in such an event, on an
application being made by the Plaintiff, the offce of the Sheriff of Mumbai
shall present a Sheriff's report for auctioning the vessel within 7 days from
the date of receiving communication from the Plaintiff's Advocate or from
the date of knowledge of abandonment of vessel.
13 This Order shall be digitally signed by the Private Secretary of
this Court. The Plaintiff is at liberty to forward a copy of this Order and the
Judges Order and the letter from the Sheriff of Mumbai intimating arrest of
the Defendant Vessel by fax/email/hand delivery/RPAD to all the concerned
authorities who are directed to forthwith act on the same.
B.P. COLABAWALLA, J.
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