The Board Of Trustees Of The Port Of ... vs Dlb Nand Gaurav And 2 Ors
2021 Latest Caselaw 16350 Bom

                                                                                  jo.195.21..doc




                                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        ADMIRALTY & VICE ADMIRALTY JURISDICTION
ANJALI   Digitally signed by
         ANJALI TUSHAR
                                                IN ITS COMMERCIAL DIVISION
TUSHAR   ASWALE
         Date: 2021.11.25
ASWALE
                                          JUDGE'S ORDER NO. 195 OF 2021
         15:43:49 +0530




                                                      IN
                                   COMMERCIAL ADMIRALTY SUIT (L) NO. 25587 OF 2021

                               The Board of Trustees of the Port
                               of Mumbai                                                   ..Plaintiff
                                      Vs.
                               DLB Nand Gaurav (MMSI: 419900783) & Ors                     ..Defendants

                               Mr.Ajai Fernandes a/w Sneha Pandey i/b Motiwalla & Co, for the
                               Plaintiff.
                               Mr.Rahul     Narichania,    Senior   Counsel     a/w      Sharila    D'souza,
                               Gopalkrishna Nayak i/b Flavia Legal, for the Applicant in IAL.27005/21.

                                                               CORAM:- B. P. COLABAWALLA,J.

DATE :- NOVEMBER 25, 2021.

P. C.:

The above Judge's order has been filed by the Plaintiff

(Mumbai Port Trust) seeking the arrest of the 1 st Defendant Vessel.

Mr. Fernandes, the learned counsel appearing on behalf of the Plaintiff

states that there is no Caveat against the arrest of the 1 st Defendant

Vessel as per the endorsement made today at 11.00 a.m. by the Section

Officer of the Execution Department. The Caveat Warrant Book against

arrest is also presented in Court and the Court Associate confirms that

there is no Caveat entered against the arrest of the 1 st Defendant Vessel.

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                                                   jo.195.21..doc


2           The above Suit has been filed for a Judgment and Decree

against the 1st Defendant Vessel in the sum of Rs. 7,37,40,633/- towards

anchorage charges upto 30th September, 2021. A Decree is also sought

for anchorage charges in a sum of Rs. 86,345/- per day from 1 st October,

2021 till the 1st Defendant Vessel is removed. A prayer is also sought for

the the arrest, sequestration, condemnation and sale of the 1 st

Defendant Vessel, for securing and/or satisfying the Plaintiff's claim.

3 The claim of the Plaintiff arises out of various invoices

raised on the 1st Defendant Vessel towards anchorage charges. Having

perused the Plaint and hearing Mr. Fernandes, I am satisfied that the

claim of the Plaintiff is a maritime claim as defined in Section 4 (1) (n)

of the Admiralty (Jurisdiction & Settlement of Maritime Claims) Act,

2017.

4 I also find that a prima facie case for arrest of the 1 st

Defendant Vessel is made out. If the order of arrest is not passed, great

prejudice would be caused to the Plaintiff. I am therefore, is, clearly of

the view that the balance of convenience also lies in favour of the

Plaintiff. Accordingly, I order and direct the arrest of the 1 st Defendant

Vessel-DLB Nand Gaurav (MMSI: 419900783) along with her hull,

engines, gears, tackles, bunkers, machinery, apparel, plant, furniture,

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fixtures, appurtenances and paraphernalia, plant and machinery

currently at anchorage at the Port of Mumbai or whereever she is within

the territorial waters of India untill the satisfaction of the Plaintiff's

claim.

5 As mentioned earlier, there is also a Judges'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 given along

with the Judge's order as undertakings given to the Court. In the facts

of the present case, I make an order in terms of the Judge's Order. The

undertakings of the Plaintiff's advocate that the warrant of arrest will be

served upon the 1st Defendant Vessel and all other concerned

authorities within a period of six weeks from today is accepted.

6 It has been brought to my attention by Mr. Narichania, the

learned Senior Counsel appearing on behalf of the Suraksha Asset

Reconstruction Private Limited, (and who has been joined as Defendant

No.4 in the above Suit by my order passed today in Interim Application

(L) No. 27005 of 2021), that the said Defendant No.4 has been

maintaining the aforesaid Vessel since the year 2019. In fact, a

Commissioner has also been appointed in relation to the said Vessel

pursuant to the order passed by DRT-II, New Delhi. He submitted that

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the said Defendant No.4, through the Commissioner, is in possesison of

the 1st Defendant Vessel and hence has been maintaing the same since

January 2019.

7 Considering that the 1st Defendant Vessel is now arrested,

the expenses for maintaining the Vessel will have to be undertaken by

the Sheriff of Mumbai. In order to enable the Sheriff of Mumbai to

maintain the Vessel, the said Defendant No.4 shall put the Sheriff in

funds of Rs. 20 Lakhs for maintaining the said Vessel for one month.

Mr. Narcihania has stated that the aforesaid amount of Rs. 20 Lakhs

shall be forwarded to the Sheriff of Mumbai within a period of one week

from today. The said statement is accepted as an undertaking given to

this Court. The monies that are forwarded by Defendant No.4 to the

Sheriff of Mumbai for the purposes of maininging the Vessel shall be

treated as Sheriff's expenses and shall be paid out in the highest priority

to the said Defendant No.4.

8 Mr. Narichania has further stated that Defendant No.4 has

made several attempts for sale of the 1 st Defendant Vessel without any

success. He has also stated that none have come forward for opposing

the same. It was the submission of Mr. Narichania that considering that

the owner of the Defendant Vessel (Defendant No.2) is already in

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liquidation, this would be a fit case where the 1 st Defendant Vessel be

put up for sale forthwith. Mr. Fernandes also joined in the said request

made by Mr. Narichania.

9 Consdering the peculiar facts and circumstances of the case,

I agree with the submission made by both sides. However, it would be

in the interest of justice, if a formal application for sale is made by the

Plaintiff in that regard. Accordingly, the Plaintiff is directed to file an

appropriate application in this Court seeking directions for sale of the 1 st

Defendant Vessel. This application shall be filed on or before 29 th

November, 2021. Once the said application is filed, this Court shall

consider that application on its own merits and in accordance with law.

10 This order is passed without prejudice to the rights,

contentions and claims of Defendant No.4.

11 This order will be digitally signed by the Private

Secretary/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/or email. The authorities in question are the

customs authorities.

                                        ( B. P. COLABAWALLA, J. )



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