Bombay High Court
Deltacorp Pacific Hk Ltd vs Oss Pfs Brave (Imo No. 9428580) And ... on 6 October, 2021
Bench: B.P. Colabawalla
prod.501.jo.183.21..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
ANJALI ANJALI TUSHAR
TUSHAR ASWALE
Date: 2021.10.06
ASWALE 17:34:27 +0530
ADMIRALTY AND VICE ADMIRALTY JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL ADMIRALTY SUIT (L) NO. 22767 OF 2021
WITH
JUDGE'S ORDER NO. 183 OF 2021
IN
COMMERCIAL ADMIRALTY SUIT (L) NO. 22767 OF 2021
DELTACORP PACIFIC HK LTD ... Plaintiff
Versus
OSS PFS Brave (IMO No. 9428580) & Anr. .... Defendants
Mr. Prashant Pratap, Senior Advocate a/w Ms. Bulbul Singh Rajpurohit
a/w Mr. Siddharth Manek i/b M/s. Crawford Bayley & Co., for the
Plaintiff.
CORAM:- B. P. COLABAWALLA,J.
DATE :- OCTOBER 6, 2021.
P.C.
At the outset, registry informs me that there are two
caveats, one filed by Singhania Legal Service and Mr. Avik Sarkar, both
advocates represent Tirupati Vessel Private Limited (Defendant No. 2)
against arrest of the Defendant Vessel. The registry has produced a copy
of the caveat which states that the security offered is only Rs. 10 lakh
each. Mr. Pratap states that the claim of the Plaintiff is USD 313,700. It
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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 1072 (earlier 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 and which is currently at anchorage of the Port of
Mumbai, may sail out of the jurisdiction of this Court at any time.
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.
3 Coming to the brief facts, by the present suit, the Plaintiff
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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 313,700 together with interest at the rate of 12% per annum
from date till payment and/or realization as per the particulars of claim.
The Plaintiff's claim arises out of a breach of a valid concluded,
subsisting, enforceable and concluded contract for sale of the Defendant
Vessel and failure of Defendant No. 2 to deliver the Defendant Vessel to
the Plaintiff under the Memorandum of Agreement dated 17 June 2021.
It is in these circumstances the present suit is filed and the above
Judge's Order has been taken out for arrest of the Defendant Vessel.
4 I have heard the learned Senior Counsel appearing on
behalf of the plaintiff and also considered the averments made in the
plaint. After 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.
This claim squarely falls within the meaning of a maritime claim as
defined in Section 4(1)(r) 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
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being at Mumbai anchorage is within the admiralty jurisdiction of this
Court. The Plaintiff has made out a strong prima facie case. The balance
of convenience also 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 OSS
PFS Brave (IMO No. 9428580) along with her hull, engines, gears,
tackles, bunkers, machinery, apparel, plant, furniture, fixtures,
appurtenances and paraphernalia, 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 313,700.
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 Private Secretary 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.
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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. )
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