Ndo Pacific Resources vs Mv Century Bright Imo No 9588500
2023 Latest Caselaw 11031 Bom

                                                        Pro JOL.29989.23 in COMASL.29973.23.doc



                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    ORDINARY ORIGINAL CIVIL JURISDICTION
                        IN ITS COMMERCIAL DIVISION

                 JUDGE'S ORDER (L) NO. 29989 OF 2023
                                 IN
            COMMERCIAL ADMIRALTY SUIT (L) NO. 29973 OF 2023


Indo Pacific Resources                         ...         Applicant/Plaintiff

           Versus

M V Century Bright (IMO-9588500                ...       Defendant



Mr. Prathamesh Kamat a/w Shiv Iyer, Aditi Maheshwari, Ms. Anitta
Varghese i/b Renata Partners for the Plaintiff.

                                   CORAM :     R.I. CHAGLA, J.
                                   DATED :     25th OCTOBER, 2023.
ORDER :

1 Matter mentioned. Not on Board. Taken on Board.

2 The above Suit, along with Judge's Order, has been moved

ex- parte after the production was granted. The urgent relief sought is the

arrest of the Defendant Vessel as there is an apprehension that the

Defendant Vessel may sail away with the Plaintiff's cargo on aboard.

According to the Plaintiff, it has an irrefutable claim against the

Defendant Vessel. If the Defendant Vessel sails away, the present

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proceedings will be rendered infructuous.

3 The present suit is for judgment and decree against the

Defendant Vessel and the arrest, sequestration, condemnation and sale of

the Defendant No.1 Vessel for securing and/or satisfying the Plaintiff's

aggregate claim of AED 1,221,576.37 and USD 537,138 along with legal

costs of INR 20,00,000/-. The Plaintiff has also claimed interest calculated

at the rate of 18 % per annum from the date of filing of the suit till

payment and/ or realization as per the particulars of claim which is at

Exhibit - V.

4 The Plaintiff in the present Suit has sought leave under Order

II Rule 2 of the Code of Civil Procedure, 1908 to include claims that may

arise post the order of arrest which would include for compensation.

Accordingly, leave is granted under Order II Rule 2 of the Code of Civil

Procedure, 1908 to the Plaintiff to include claims that may arise post the

order of arrest.

5 The claim in the Suit arises under the bills of lading which

are issued by the master of the Defendant Vessel which Consigned to the

Plaintiff and under the Charterparty dated 05.08.2023, on account of the

failure of the Defendant Vessel and her Owners to discharge the cargo on

aboard the Defendant Vessel. The present Suit is seek enforcement of

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maritime claim by seeking specific performance in addition to recover the

losses incurred by the Plaintiff. The Plaintiff in the alternative to specific

performance has sought arrest for the value of the cargo in addition to the

losses suffered by the Plaintiff.

6 I have heard Mr. Kamat, the learned counsel appearing on

behalf of the Plaintiff and also considered the averments made in the

Plaint. Perusing the Plaint and the annexures a prima facie case for arrest

of the DefendantVessel is made out. In the present case, prima facie, the

claim in the Plaint is a maritime claim as defined in section 4 (l) (g) and

(h) of the Admiralty (Jurisdiction and Settlement of Maritime Claims)

Act, 2017. The Plaintiff is entitled to move against Defendant Vessel under

Section 5 of the Act.

7 In these circumstances, I find there is no doubt that there is a

cause of action in favour of the Plaintiff. The Defendant Vessel being at

the Anchorage of Mormugao Port is within the Admiralty jurisdiction of

this Court. The balance of convenience lies with the Plaintiff to whom, in

my view, almost irreversible prejudice would be caused if reliefs were to

be denied.

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                                                    Pro JOL.29989.23 in COMASL.29973.23.doc



8            Advocate for the Plaintiff states that the Registry has

produced the Caveat Register, and there is no valid caveat against arrest

with respect to the Defendant Vessel.

9 Accordingly, I order and direct the arrest of the Defendant

Vessel, along with her hull, engines, gears, tackles, bunkers machinery,

apparel, plant, furniture, fixtures, appurtenances and paraphernalia, plant

and machinery at present at Mumbai port until the satisfaction of the

Plaintiff's claim.

10 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 and is signed separately.

11 The Plaintiff is at liberty to forward a copy of the

communication from the office of the Sheriff of Mumbai along with a

copy of this order by Fax/email/hand delivery/ RPAD to the Port and

Customs authorities.

12 After service of this Order of arrest, if the Defendant Vessel is

not released by furnishing security or bail amount within eight (8) weeks

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of service, or an application for vacating the order of arrest is not filed, or

the Defendant Vessel is found abandoned by the person in-charge of the

Defendant 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

fourteen (14) days from the date of receiving communication from the

Plaintiff's advocate or from the date of knowledge of abandonment of the

Defendant Vessel.

13 All parties to act on an authenticated copy of this Order.

                                                              (R.I. CHAGLA, J.)




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