Bombay High Court
Mrityunjay K. Singh And 8 Other vs M. V. Pfs Courage And 2 Other on 11 October, 2022
Bench: N. J. Jamadar
Digitally signed by
SWAROOP SWAROOP
SHARAD SHARAD PHADKE
Date: 2022.10.12
PHADKE 19:06:03 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ADMIRALTY AND VICE ADMIRALTY JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION NO.3011 OF 2022
IN
ADMIRALTY SUIT NO.19 OF 2018
Mrityunjay K. Singh and Ors. ... Applicants/Plaintiffs
Versus
M.V.PFS Courage and Ors. ... Defendants
Mr. Abhishek Khare with Mr. R.P.Shirole i/by Khare Legal Chamber, for Plaintiffs.
CORAM : N.J.JAMADAR, J.
DATE : 11th OCTOBER, 2022
P.C.:
1. The Plaintiffs have preferred this Application under Order XIIIA and/or
Order XII Rule 6 of the of the Code of Civil Procedure, 1908, as amended by the
Commercial Courts Act, 2015 (the Code of 1908), for a summary judgment without
recording oral evidence in favour of the Plaintiffs against the sale proceeds of M.V.PFS
Courage - Defendant Vessel for a sum of Rs.91,13,607/- along with further interest
and hardship claim as well as the legal expenses.
2. The material averments in the plaint can be summerized as under :
2.1 The Defendant Vessel was flying an Indian flag. PFS Shipping India
Limited - Defendant No.2 was the registered owner of PFS Courage. Defendant No.3
was the Manager of the Defendant No.1 Vessel. The Plaintiffs were employed as crew
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members, in various capacities, on board the Defendant No.1 Vessel by the Defendant
No.3 in accordance with the provisions of the Merchant Shipping Act. Defendant
Nos.2 and 3 had agreed to pay wages to the Plaintiffs in cash. As Defendant Nos.2 and
3 committed default in payment of wages and also failed to supply the essentials and
make provisions for the necessities, the Plaintiffs were constrained to institute a Suit
for recovery of the arrears of wages to the tune of Rs.91,13,607/- along with interest,
hardship claim and legal expenses. The Plaintiffs annexed copies of the Articles of
Agreements, Continuous Discharge Certificates and Passports to substantiate their
claims. The Plaintiffs, inter alia, sought the arrest of the Defendant No.1 Vessel.
3. The Defendant No.2, the then registered owner of the Defendant No.1
Vessel, has been duly served with the writ of summons and an Affidavit of service has
been filed by Mr. Rajkumar Tiwari, Bailiff attached to the Office of the Sheriff of
Mumbai. Defendant No.2 appeared. On 6th November, 2019 a statement was made
on behalf of Defendant No.2 that the Defendant No.2 does not wish to file any written
statement for itself or in its capacity as registered owner of Defendant No.1. As against
Defendant No.3, the Suit came to be dismissed as withdrawn by an order dated 29 th
November, 2019.
4. In the meanwhile, Defendant No.1 Vessel was arrested by an order dated
22nd September, 2017 passed by this Court in ADMS(L) No.514 of 2017 (ADMS
No.20 of 2018. By a subsequent order dated 4 th July, 2018, the Defendant No.1 Vessel
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was ordered to be sold. The sale was confirmed by an order dated 19th July, 2018. The
sale consideration of Rs.5,50,00,000/- after deducting the Sheriff's expenses came to
be deposited in this Court.
5. The Plaintiffs have taken out this Application with the assertion that the
liability to pay the crew wages is an admitted liability and there is no real prospect of
Defendant Nos.1 and 2 succeeding in defending the claim. In the Application, the
Plaintiffs have furnished particulars of the claim of each of the Applicants in a
tabulated format.
6. Defendant No.2 has been served with the instant Application and an
Affidavit of Service came to be filed on 26 th April, 2022. Thereafter, pursuant to the
directions of this Court, the Court Commissioner has verified the original Agreements
in respect of the crew members. Post verification, this Application was taken up for
hearing.
7. The Commissioner's Report records, inter alia, as under :
Sr.No. Name of Crew Member Pltf No Claim Particulars of Documents
(In Rs.)
Seafarer Employment Seafarers
Contract with date Article of
Agreement
with date
1 Mr. Mrityunjay K. Singh 1 3,93,333/- Original contract dated Original Article
22/06/2016 dated
23/06/2018
2 Mr. Francis Xavier K. 2 11,77,050/- Original Contract dated Original Article
19/05/2017 dated
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20/05/2017
3 Mr. Salam Ismail 3 1,06,593/- Original contract dated Original Article
Jalgaonkar 02/01/2017 with dated
Original Form of 02/01/2017
Contract of
Apprenticeship to Sea
Service
4 Mr. Manjit Singh 4 89,680/- Original contract dated Original Article
13/02/2017 dated
13/02/2017
5 Mr. Niranjan Kumar 5 29,20,500/ Original contract dated Original Article
- 18/04/2017 dated
18/04/2017
6 Mr.Iyyappan 6 3,48,100/- Original contract dated Original Article
Ramakrishnan 05/04/2017 dated
05/04/2017
7 Mr. Ashraaf Ahmad 7 2,66,138/- Original Contract dated Original Article
Siddique And 19/05/2017 dated
1,54,659/- 20/05/2017
8 Mr. Karn Yadav 8 3,23,627/- Notarized copy of Original Article
And original contract dated dated
2,38,874/- 08/04/2017 10/04/2017
9 Mr. Sanjay Kumar 9 10,95,040/ Original contract dated Original Article
- 29/11/2016 dated
29/11/2016
Total Claim 71,13,607/-
Notarized True copies of relevant extract of the Continuous Discharge Certificates (CDC) of Plaintiff
No. 1 to Plaintiff No. 9 (This document containing Signed on and signed off on Defendant No. 1 Vessel
and Identification of the Plaintiffs)
8. The Plaintiffs claim of having rendered services on board the Defendant
No.1 Vessel finds support in the respective Employment Agreements and Sea-farers
Articles of Agreements duly verified by the Court Commissioner. The claim of the
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respective Plaintiffs is further substantiated by the true copies of Continuous
Discharge Certificates (CDCs) and Passports. Continuous Discharge Certificates of
Plaintiff Nos.1 to 9 are annexed at Exhibits E-1 to E-9 (pages 135 to 152) of the plaint.
The entries in the Continuous Discharge Certificates reflecting the dates of 'sign in'
and 'sign off', lend support to the claims of the respective Plaintiffs as regards the
services rendered on board the Defendant No.1 Vessel. The claim of the respective
Plaintiffs is further substantiated by the true copies of the Passports Exhibits D-1 to D-
9 (pages 118 to 134 of the Plaint).
9. In the light of the aforesaid material of unimpeachable character, the
learned Counsel for the Plaintiffs submitted that the claim of the crew members is
incontrovertible and the Defendant Nos.1 and 2 have no real prospect of successfully
defending the claim of the crew members.
10. I am persuaded to agree with the aforesaid submissions. The fact that the
Plaintiffs had rendered services on board the Defendant No.1 Vessel, in varying
capacities, is established beyond the pale of controversy by the aforesaid documents
namely the Employment Agreements, Sea-farers Articles of Agreements, Continuous
Discharge Certificates and Passports. To add to this, crew salary claim as per Section
129 of the Merchant Shipping Act, 1958 (Exhibit F to the Plaint) is furnished by the
Master of the Defendant No.1 Vessel. It indicates the date of joining, date of sign off,
wages per day/month, advance, if any, paid and the period since which the wages are
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due. Interest is charged @ 18% p.a. on unpaid wages. A scanned copy of the certificate
issued by the Masters of PFS Courage is appended below :
11. In view of the provisions contained in Section 2(1)(g) read with Section
9(1)(a) of the Admiralty ( Jurisdiction and Settlement of Maritime Claims) Act, 2017,
the claim of the crew for wages constitutes a maritime lien. It also ranks first in the
order of in inter se priority of claimants having maritime lien. It is trite law that crew
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can proceed in rem against the Vessel and/or sale proceeds of the Vessel, where it is
sold consequent to arrest, to enforce their maritime claims for wages.
12. In the light of the aforesaid position in law and overwhelming material to
substantiate the claim of the Plaintiffs that they did render the services as crew
members, on different positions, on board the Defendant No.1 Vessel, which is
encapsulated in the Master's Certificate (Exhibit H) extracted above, there is no
realistic prospect of the Defendant Nos.1 and 2 successfully defending the claim of the
Plaintiffs. Since the Defendant No.2 chose not to contest the claim of the crew
members, there does not seem to be any compelling reason not to dispose of the Suit
before recording oral evidence.
13. Mr. Khare, learned Counsel for the Plaintiffs submitted that in the
intervening period, Plaintiff Nos.1 to 8 have collectively received a sum of
Rs.34,82,804/- by way of advance from QBE UK Limited (formerly known as QBE
Insurance (Europe) Limited (P&I) against their total dues of Rs.51,00,478/- till date.
Whereas, Plaintiff No.9 has not received any amount from QBE UK Limited and the
claim of Plaintiff No.9 stands at Rs.9,28,000/-. Since the Plaintiff Nos.1 to 8 have
already received advance from QBE UK Limited, the said amount is required to be
deducted from the wages payable to the Defendant Nos.1 to 8.
14. For the foregoing reasons, I do not find any impediment in passing the
summary judgment in favour of Plaintiff Nos.1 to 8 and 9 for the aforesaid amounts
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and against the sale proceeds of Defendant No.1 Vessel.
15. Hence, the following order :
ORDER
(i) The Interim Application stands allowed.
(ii) There shall be a summary judgment in favour of Plaintiff Nos.1 to
8 for the sum of Rs.16,17,674/- and in favour of Plaintiff No.9 for the sum of
Rs.9,28,000/- and against the sale proceeds of the Defendant No.1 Vessel, along with
further interest @ 12% p.a. from the date of "sign off" till payment and/or realization.
(iii) Each of the Plaintiffs is entitled to costs quantified at Rs.25,000/-.
(iv) Subject to and upon determination of priorities, the decreetal
amounts be disbursed to the respective Plaintiffs through their Advocates for onwards
remittance to the respective Plaintiffs, who are Sea-farers.
(v) It is, however, made clear that the Plaintiffs will pay the income
tax and other statutory dues directly and that the Advocates for the Plaintiffs shall, in
no manner, be liable / responsible for deducting the income tax at source or the
service tax etc.
(vi) By an order dated 15th November, 2017, the Plaintiffs were
allowed to pay the court fees at the time of disbursal of the decreetal amounts. The
Prothonotary and Senior Master should ensure that the court fee amount is deducted
from the amount payable to the Plaintiffs before paying any money to the Plaintiffs.
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(vii) The Suit also stands disposed.
(viii) Decree be drawn in the aforesaid terms.
( N.J.JAMADAR, J. )
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