Rahul Rastogi vs Mt. Bon Atlantico And Anr
2021 Latest Caselaw 10776 Bom

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                ADMIRALTY AND VICE ADMIRALTY JURISDICTION

                        IN ITS COMMERCIAL DIVISION

             COMMERCIAL ADMIRALTY SUIT (L) NO. 17463 OF 2021
           Digitally
           signed by               With
           GANESH
GANESH     SUBHASH
SUBHASH
LOKHANDE
           LOKHANDE
           Date:        JUDGES ORDER No. 141 of 2021
           2021.08.10
           14:19:09
           +0530
                                     In

             COMMERCIAL ADMIRALTY SUIT (L) NO. 17463 OF 2021


             Mr. Rahul Rastogi                         ... Plaintiff

                                   Versus

             MT. BON ATLANTICO (IMO No. 9248203)

             & Anr                                     ... Defendant




     Mr. Prasad Shenoy a/w Nirav Shroff and Siddharth Manek

     instructed by M/s. Crawford Bayley & Co., Advocates for the

     Plaintiff.


                                    CORAM: B. P. COLABAWALLA, J

                                    DATE: 10th August, 2021

     P .C.
 1.

At the outset the Registry has informed me that there is a

caveat filed by Sandhya Pillai, advocates on behalf of Zen

Shipping & Ports India (P) Ltd against arrest of the

Defendant Vessel. The registry has produced a copy of the

caveat which states that the security offered is only

Rs.5000/-. Mr. Prasad Shenoy states that the claim of the

plaintiff is in USD 23,400. It is settled law that if the plaintiff

satisfies the Court that the amount of security mentioned in

the caveat is so low that it does not secure his interest, in

such a case, the plaintiff will also be entitled to move the

Court for dispensing with the requirement of serving notice

on the defendant under Rule 939 (See Mr. Bernardo de Souza

vs. m.v. Seven Island and Anr. Notice of Motion No.1858 of

2006 in Admiralty Suit No.11 of 2006 - unreported). In view

of the aforesaid, the notice is dispensed with.

2. The above Judge's Order has been moved ex-parte after I

agreed to grant circulation. The urgent relief sought is the

arrest of the Defendant Vessel as there is an apprehension

that the that the Defendant Vessel which is currently at

anchorage of the Port of Mumbai, may sail out of the

jurisdiction of this Court anytime. According to the Plaintiff, it has an irrefutable claim against the Defendant Vessel. If the

Defendant Vessel is permitted to sail, the Plaintiff will have

no legal recourse whatsoever to recover the amounts due to it

and its security will be lost forever and eventually these

proceedings will be rendered infructuous. It is in this light

that the present Judge's Order has been moved before me

today at 1.15 P.M.

3. Coming to the brief facts, by the present suit, the Plaintiff

seeks 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 claim of the principal amount of USD 18,400 plus

and USD 5,000 for cost of litigation in India, (aggregating to

USD 23,400) with further interest at the rate of 18% per

annum from date of the suit till payment and/or realization as

per the particulars of claim. This claim is for wages arising

out of services provided by Plaintiff as Master of the Vessel

under employment agreement dated 13th January 2021.

4. I have heard the learned Counsel appearing on behalf of the

plaintiff and also considered the averments made in the plaint. On going through the plaint and the annexures

thereto, I find that a prima facie case for arrest of the

Defendant Vessel is made out. In the present case, prima

facie, the claim in the plaint is a maritime claim. They are the

dues of the plaintiff for providing services as Master of the

Vessel. This claim will therefore, squarely fall within the

meaning of a maritime claim as defined in Section 4(1)(o) r/w

Section 9 (1) (a) of the Admiralty (Jurisdiction & Settlement

of Maritime Claims) Act, 2017.

5. In these circumstances, I find that there is no doubt that

there is a cause of action in favour of the Plaintiff and that the

vessel being at Mumbai anchorage is within the admiralty

jurisdiction of this Court. The Plaintiff has made out an ample

prima facie case. The balance of convenience lies with the

Plaintiff to whom, in my view, almost irreversible prejudice

would be caused if reliefs were to be denied. Accordingly, I

order and direct the arrest of the Defendant Vessel MT. BON

ATLANTICO (IMO No. 9248203) along with her hull, engines,

gears, tackles, bunkers, machinery, apparel, plant,

furniture, fixtures, appurtenances and paraphernalia, Plant

and Machinery at present at anchorage at the Port of Mumbai or wherever she is within the territorial waters of India until

the satisfaction of the Plaintiff's claim to the tune of USD

23,400.

6. As mentioned earlier, there is also a Judge's Order. I have

seen the Judge's Order and it seems to me to be in the proper

form and with the appropriate contents. I accept the

undertakings contained in the Judge's Order as undertakings

to the Court. I therefore make an order in terms of the

Judge's Order in the facts and circumstances of the present

case.

7. This order will be digitally signed by the Personal Assistant of

this Court. All concerned will act on a digitally signed copy of

this order. They will act on production of a copy digitally

signed by fax and by email. The authorities in question are

the Port and the Customs Authorities. The necessary

communication details will be provided to the Associate by

the Advocates for the Plaintiff.

8. The undertaking of the plaintiff's Advocate that the warrant

of arrest will be served upon the defendant vessel and all other concerned Authorities within a period of six weeks from

today is accepted.

9. After service of this order of arrest, if the arrested vessel is

not released by furnishing security or bail amount within 6

weeks of service, or an application for vacating the order of

arrest is not filed, or the vessel is found 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 office of the Sheriff of Mumbai shall

present a Sheriff's report for auctioning the vessel within 14

days from the date of receiving communication from the

plaintiff's Advocate or from the date of knowledge of

abandonment of vessel.

(B. P. COLABAWALLA, J.)