Western India Shipyard Limited ... vs M V Qing And Others
2022 Latest Caselaw 11629 Bom

                                                    12-IA-4491-22+.DOC

                                                       Sayali Upasani


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
       ADMIRALTY AND VICE ADMIRALTY JURISDICTION


            INTERIM APPLICATION NO.4491 OF 2022
                             IN
            COMM. ADMIRALTY SUIT NO.63 OF 2016

Western India Shipyard Ltd                   ... Applicant/Org.
                                                        Plaintiff
In the matter between
Western India Shipyard Ltd                            ...Plaintiff
                   Vs.
M.V. Qing & Ors                                 ...Respondents

Mr. Prathamesh Kamat i/b Yashvi Panchal, for Applicant.
Mr. Vikrant Shetty i/b Dhruve Liladhar & Co., for
      Respondents.
Mr. Prateek Pansare with Mr. Siddharth Manek i/b Crawford
      Bayley & Co., for Defendant No. 3.
Mr. Jetendra B. Mishra with Mr. Ashutosh Mishra, for
      Applicant in NMS/2374/2019.
Mr. A.M. Vernekar, for Defendant No. 4

                         CORAM:      N. J. JAMADAR, J.

                         DATED :     15th NOVEMBER, 2022

PC:-

1. The plaintiff-applicant has taken out this application

seeking permission of the Court to transfer its entire right,

title, liens, claims (including maritime claims and maritime

liens) in the instant Commercial Admiralty Suit in favour of

ABKJ & Co.- respondent-auction purchaser, with permission

to the respondent to further prosecute the remedies.

12-IA-4491-22+.DOC

2. By an order dated 26th July, 2018, the plaintiff company

was directed to be liquidated under the Insolvency and

Bankruptcy Code, 2016 ("IBC"). Eventually, in July, 2022, the

liquidator issued a tender for sale of two "not readily realizable

assets" (within the meaning of regulation 37-A of the

Insolvency and Bankruptcy Board of India (Liquidation

Process) Regulations, 2016) of the plaintiff company, being Lot

1 and Lot 2, therein.

3. Lot 1 was described as under-

"Entire right, title, liens and interest of the Corporate Debtor in Commercial Admiralty Suit No. 63 of 2016 pending before the Hon'ble Bombay High Court and all applications therein, including all right, title and interest in all receivables, claims liens (including possessory lines, maritime liens and maritime claims), any reimbursements (including of reimbursement of Sheriff's expense and refund of court fees) as well as any other actionable claim or receivable that the Liquidator/Corporate Debtor would otherwise have against Sahara Tourism Development Corporation Ltd, Trinty Leisure Company Pvt Ltd., M/s Balaji Fuels the Vessel M.V. Qing and the sale proceeds from the Vessel M.V. Qing lying with the Hon'ble Bombay High Court..."

4. The auction was held on 18 th August, 2022. The respondent

was declared the highest bidder in respect of Lot 1 for a sum of

Rs.60,00,000/-. Respondent paid the balance amount of

Rs.54,00,000/-, after adjusting EMD of Rs.6,00,000/-, on 9 th

September, 2022. Hence, this application.

5. None appeared for defendant No.2, Sahara India Tourism

Development Corporation Ltd.

12-IA-4491-22+.DOC

6. The learned Counsel for defendant No. 3, Trinity Leisure

Company Pvt Ltd submitted that defendant No. 3 submits to

the orders of the Court.

7. Mr. A.M. Vernekar, the learned Counsel for the Board of

Trustees of the Mormugao Port Trust, the defendant No. 4,

submitted that in fact the application ought to have been made

by the respondent in the capacity of assignee.

8. The learned Counsel for respondent, on his part, submitted

that the respondent is willing to be impleaded in the capacity

of the plaintiff in accordance with the schedule of amendment

(Exhibit B) appended to the application.

9. Mr. Kamat, the learned Counsel for the applicant-plaintiff

would urge that though the transfer of ownership of the

subject matter of the instant suit has occasioned by operation

of law yet, by way of abundant caution, the plaintiff-applicant

is seeking leave of the Court to transfer its maritime claim and

liens in favour of the respondent.

10. Attention of the Court was invited to the observations in

paragraph No. 49 of the Judgment of Division Bench in the

case of The Swedish Club Vs. V8 Pool Inc. and other,

Commercial Appeal No. 108 of 2021 in Interim Application No.

12-IA-4491-22+.DOC

2062 of 2021, dated 23rd March, 2022. They read as under-

"insofar as the last bone of contention, i.e. whether pre-arrest wages paid by Swedish Club can be given the status of a maritime lien, is concerned, it appears to us that the law is that such lien is not assignable/ subrogable without prior leave of the court. However, there does not seem any blanket embargo on the transferability of such lien. If the prior leave of the court has been taken, the lien can be transferred. As stated above, Swedish Club cannot be faulted for approaching the Admiralty Court to take leave before making such payments. In any event, Mr. Kamat has fairly conceded that such lien as the crew members had may be considered to be transferred to Swedish Club."

11. The Division Bench has held that there does not seem any

blanket embargo on the transferability of the maritime lien. In

the case at hand, the transfer of the assets is, in a sense, by

operation of law.

12. In the circumstances, I do not find any impediment in

granting the permission to transfer the assets. Moreover, the

respondent - transferee is willing to be impleaded in the

capacity of the plaintiff and prosecute further remedies.

13. Hence, application stands allowed in terms of prayer

Clause "a" and "b"

14. Necessary amendment in accordance with the schedule of

amendment (Exhibit B) appended to the application be carried

out within a period of two weeks.

15. Application disposed.

[N. J. JAMADAR, J.]