Bombay High Court
Sohan Lal vs M.V. Pfs Courage And 2 Ors on 11 October, 2022
Bench: N. J. Jamadar
Digitally signed by
SWAROOP SWAROOP
SHARAD SHARAD PHADKE
Date: 2022.10.12
PHADKE 19:05:35 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ADMIRALTY AND VICE ADMIRALTY JURISDICTION
INTERIM APPLICATION (L) NO.9509 OF 2022
IN
ADMIRALTY SUIT NO.42 OF 2019
Sohan Lal ... Applicant/Plaintiff
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 Plaintiff has 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.2,52,000/- 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
being the agent of Defendant No.2, executed the Article of Agreement and the
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Seafarer Employment Agreement on behalf of Defendant No.2 with the Plaintiff. The
Plaintiff was employed as Second Engineer on board the Defendant No.1 Vessel by
the Defendant No.3 in accordance with the provisions of the Merchant Shipping Act,
1958. Defendant Nos.2 and 3 had agreed to pay wages to the Plaintiff 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 Plaintiff was
constrained to institute a Suit for recovery of the arrears of wages to the tune of
Rs.2,52,000/- along with interest, hardship claim and legal expenses. The Plaintiff
annexed copies of the Articles of Agreement and Continuous Discharge Certificate to
substantiate his claim. The Plaintiff, inter alia, sought the arrest of the Defendant
No.1 Vessel.
3. In the meanwhile, Defendant No.1 Vessel was arrested by an order dated
22nd September, 2017. By a subsequent order dated 4 th July, 2018, the Defendant No.1
Vessel was ordered to be sold. The sale was confirmed by an order dated 19 th July,
2018. The sale consideration of Rs.5,50,00,000/-, after deducting the Sheriff's
expenses, came to be deposited in this Court.
4. The Plaintiff has 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. Defendant No.2 has been
served with the instant Application and an Affidavit of Service came to be filed on 26 th
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April, 2022.
5. By an order dated 29th November, 2019, the Suit came to be dismissed as
withdrawn qua Defendant No.3. By an order dated 13 th September, 2022, the
Defendant No.2 came to be deleted from the array of parties and, therefore, the
Plaintiff's claim now survives against the sale proceeds of Defendant No.1 Vessel only
6. Pursuant to the directions of this Court, the Court Commissioner has
verified the original Agreement. Post verification, this Application was taken up for
hearing.
7. The Commissioner's Report records, inter alia, as under :
Sr. Name of Crew Plaintiff Claim Particulars of Documents
Member No (In Rs.)
Seafarer Employment Seafarers Article of
agreement with date Agreement with date
1 Sohan Lal 1 252,000/- Original agreement Original Article dated
dated 30/12/2015 31/12/2015
Total 252,000/-
Notarized True copies of relevant extract of the Continuous Discharge Certificates (CDC)
of Plaintiff (This document containing Signed on and Signed off on Defendant No. 1
Vessel and Identification of the Plaintiffs)
8. The Plaintiff's claim of having rendered services on board the
Defendant No.1 Vessel finds support in the Employment Agreement and Sea-farers
Articles of Agreement duly verified by the Court Commissioner. The claim of the
Plaintiff is further substantiated by the true copies of Continuous Discharge
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Certificates (CDCs) which is annexed in the compilation of original documents. The
entries in the Continuous Discharge Certificates reflecting the dates of 'sign in' and
'sign off', lend support to the claims of the Plaintiff as regards the services rendered
on board the Defendant No.1 Vessel.
9. In the light of the aforesaid material of unimpeachable character, the
learned Counsel for the Plaintiff submitted that the claim of the crew member is
incontrovertible and the Defendant No.1 has no real prospect of successfully
defending the claim of the Plaintiff.
10. I am persuaded to agree with the aforesaid submissions. The fact that the
Plaintiff had rendered services on board the Defendant No.1 Vessel, is established
beyond the pale of controversy by the aforesaid documents namely the Employment
Agreement, Sea-farers Articles of Agreement, Continuous Discharge Certificate.
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
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 Plaintiff that he did render the services as crew member,
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on board the Defendant No.1 Vessel, there is no realistic prospect of the Defendant
No.1 successfully defending the claim of the Plaintiff.
13. In any event the maritime lien of a crew member commands highest
priority, as noted above. Hence, I do not find any impediment in passing a summery
judgment in favour of the Plaintiff and against the sale proceeds of Defendant No.1
Vessel.
14. Hence, the following order :
ORDER
(i) The Interim Application stands allowed.
(ii) There shall be a summary judgment in favour of each of the
Plaintiff in the sum of Rs.2,52,000/- and against the sale proceeds of the Defendant
No.1 Vessel, along with further interest @ 12% p.a. from the date of the Suit till
payment and/or realization.
(iii) The Plaintiff is entitled to costs quantified at Rs.25,000/-.
(iv) Subject to and upon determination of priorities, the decreetal
amount be disbursed to the Plaintiff
(v) The Suit also stands disposed.
(vi) Decree be drawn in the aforesaid terms.
( N.J.JAMADAR, J. )
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