Apollo Export Warehouse Inc vs The Sale Proceeds Of The Vessel M V ...
2022 Latest Caselaw 5111 Bom

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  ADMIRALTY AND VICE-ADMIRALTY JURISDICTION
                                    [ COMMERCIAL DIVISION ]

                   INTERIM APPLICATION (LODGING) NO.14360 OF 2021
                                               IN
             COMMERCIAL ADMIRALTY SUIT (LODGING) NO.2548 OF 2021

Apollo Export Warehouse Inc.                                  .. Applicant-Plaintiff
                Vs.
The Sale Proceeds of the Vessel m.v. Karnika                  .. Defendant


Mr. Rohaan Pajnigar, i/by ZBA Associates, for the Applicant-Plaintiff.
None for the Defendant.

                                                       CORAM : A. K. MENON, J.

                                                       DATE      : 7TH JUNE, 2022.
P.C. :

1. The applicant-plaintiff seeks summary judgment, under Order XIII-A of the

Code of Civil Procedure, 1908, in a Commercial Admiralty Suit. The suit claim is of

USD 3,797,250, together with interest @ 12% p.a., or, at such other rate that this

court may allow. The suit claim is based on an Agreement for Technical Services

executed as between the plaintiff and the owners of the defendant-vessel, which has

since been sold. The agreement provided for rendering technical services to the

defendant-vessel and in this respect, my attention has been drawn to the aforesaid

Agreement for Technical Services dated 8 th April, 2019, a copy of which is annexed at

Exhibit-A to the plaint. The agreement provides that the plaintiff to render technical

services to the defendant-vessel, as set out in clause 2, read with Schedules A and B,

to the agreement. It is contended by learned counsel appearing on behalf of the

17-COMAS(L)-2548-2021 & IA(L)-14360-2021.doc Dixit plaintiff that in consideration of the services rendered, the plaintiff is due to receive a

sum of USD 3,660,000 for the period July 2019 to April 2020. It is contended that

totally 11 invoices have been raised, as set out in Exhibit-C to the plaint, which the

learned counsel for the plaintiff submits are the particulars of claim setting out

amounts of the invoices.

2. My attention is also drawn to the copies of the invoices, which are set out as

part of Exhibit-C to the plaint. These invoices are for diverse amounts mentioned as

against "Total Price". Collectively, these invoices are valued at USD 3,660,000. The

defendant-vessel has since been sold. The sale proceeds are lying to the credit of the

defendant-vessel. The application today is for summary judgment in the aforesaid

sum of USD 3,660,000 and interest thereon. The claim for interest is based on the

contractual provision as provided in clause 3.1 of the agreement, a copy of which is

annexed at Exhibit-A to the plaint. In paragraph 19(B) of the plaint, the basis of

computation has been set out. In effect, the claim today is for a sum of USD

3,797,250. A further interest has been claimed @ 12% p.a. on the principal sum of

USD 3,660,000.

3. The defendant is not represented today. The defendant-vessel has been sold. IA

has been served upon the owners of the defendant-vessel - a Mauritius based entity.

Affidavit-of-service has been filed. In view of the affidavit-of-service dated 13 th July

2021, I am satisfied that the IA has been duly served. There appears to be no defence

whatsoever to the claim since perusal of the record indicates that repeatedly the

defendant-vessel's owners have admitted liability and promised to make payments.

17-COMAS(L)-2548-2021 & IA(L)-14360-2021.doc Dixit These acknowledgments of liability are to be found in the e-mail correspondence,

including an e-mail dated 31st January 2020 sent at 10:10 hours by the President of

the owners of the defendant-vessel, acknowledging liability and stating that they

would reconcile all the invoices within a week and that a lump sum amount would

be paid.

4. Despite assurances, no payments were received to satisfy the claim of the

plaintiff. Accordingly, the plaintiff now claims that it is entitled for decree and

judgment in the aforesaid amount in its favour. I also find that there is no dispute

whatsoever to the claim for interest since the owners of the defendant-vessel have

acknowledged demand notice dated 7 th February 2020, a copy of which is annexed at

Exhibit-F to the plaint. The defendant once again sought time. The owners of the

defendant-vessel have failed and neglected to pay the amounts demanded. In these

circumstances, I am of the view that there is no plausible defence to the claim and

accordingly, the interim application is liable to be allowed. Accordingly, I pass the

following order :-

(i) Interim Application is made absolute in terms of prayer clause

(a).

(ii) Suit is decreed in favour of the plaintiff and against the defendant-vessel for USD 3,797,250; however, further interest shall be paid @ 6% p.a. from the date of the suit till payment or realization and subject to determination of order of priority.

(iii) Interim Application is disposed in the above terms.

(iv) In view of the above, Suit is also disposed in the above terms.

(A.K. MENON, J.)

17-COMAS(L)-2548-2021 & IA(L)-14360-2021.doc Dixit