Bombay High Court
Sayi Venkata Prasad Santhana Krishna vs The Sale Proceeds Of Mv Brahmaputra ... on 2 May, 2024
Author: R.I. Chagla
Bench: R.I. Chagla
2024:BHC-OS:7317
16-IA(L) 6892.24 in COMAS 21.2023.doc
Kavita S.J.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ADMIRALTY AND VICE ADMIRALTY JURISDICTION
INTERIM APPLICATION (L) NO.6892 OF 2024
IN
COMMERCIAL ADMIRALTY SUIT NO.21 OF 2023
SAYI VENKATA PRASAD SANTHANA KRISHNA ...Applicant/
alias (S. SAYI VENKATA PRASAD) Plaintiff
Versus
The sale proceeds of MV BRAHMAPUTRA ...Defendants
DOLPHIN (IMO No. 7608916 )
AND
COMMERCIAL ADMIRALTY SUIT NO.21 OF 2023
----------
Mr. Prathamesh Kamat a/w Apurva Mehta (Pohonerkar) for the
Applicant/Plaintiff.
----------
CORAM : R.I. CHAGLA, J.
DATED : 2nd MAY, 2024.
ORDER :
1. By the present Interim Application, the Applicant / Original
Plaintiff has sought Summary Judgment under Order XIII A as well as
KAVITA
SUSHIL
JADHAV application for decree on admission under Order XII Rule 6 of the
18:44:16 +0530 Code of Civil Procedure, 1908.
16-IA(L) 6892.24 in COMAS 21.2023.doc
2. The Applicant / Plaintiff has filed the above admiralty Suit
against the sale proceeds of the Defendant Vessel, MV
BRAHMAPUTRA DOLPHIN(IMO No. 7608916 ), for outstanding
wages amounting to Rs. 12,28,552/- being principal claim; and
interest at the rate of 8% p.a. from date of repatriation till filing of
the Suit of Rs. 3,79,673/-; aggregating to Rs. Rs.16,08,225/-, and
further interest on the principal claim amount INR 12,28,552/- from
the 1st August 2023 till payment / realization, plus legal costs of Rs.
2,00,000/-. The Defendant is the sale proceeds of the Vessel, MV
BRAHMAPUTRA DOLPHIN(IMO No. 7608916 ) which was sold vide
an Order dated 13th September 2022. The sale proceeds represent the
Defendant Vessel, MV BRAHMAPUTRA DOLPHIN(IMO No.
7608916 ).
3. Since, the Plaintiff - applicant seeks a decree against sale
proceeds of the defendant vessel, in rem, it is necessary to consider
the tenability of the action. Mr. Kamat submitted that the instant
action against the sale proceeds is in rem. It is not obligatory for a
person having a maritime claim against the vessel to proceed against
the owner and manager of the vessel. Mr. Kamat sought to draw
support to the aforesaid submission from the judgment of this Court
16-IA(L) 6892.24 in COMAS 21.2023.doc
in the case of Board of Trustees of Port of Mumbai/Raj Shipping
Agencies Vs. Barge Madhwa and another reported in 2020 SCC
Online Bom 651,wherein, elucidating the nature of an action in rem
this Court observed as under:
"21. Action in rem is against the ship and not the owner 22. A
ship or a vessel as commonly referred to is a legal entity that
can be sued without reference to its owner. The purpose of an
action in rem against the vessel is to enforce the maritime
claim against the vessel and to recover the amount of the
claim from the vessel by an admiralty sale of the vessel and
for payment out of the sale proceeds. It is the vessel that is
liable to pay the claim. This is the fundamental basis of an
action in rem. The Claimant is not concerned with the owner
and neither is the owner a necessary or proper party. The
presence of the owner is not required for adjudication of
Plaintiff's claim. That is why no writ of summons is required
to be served on the owner of the vessel. The service of the
warrant of arrest on the vessel is considered sufficient. 23. For
the purpose of an action in rem under the Admiralty Act, the
ship is treated as "a separate juridical personality, an almost
corporate capacity, having not only rights but liabilities
(sometimes distinct from those of the owner)" - (M.V.
Elisabeth and Ors. V/s. Harwan Investments and Trading Pvt.
Ltd.).
24. .....
25. The fundamental legal nature of an action in rem as
distinct from its eventual object is that it is a proceeding
against res. Thus, when a ship represents such res as is
frequently the case, the action in rem is an action against the
ship itself. The action is a remedy against the corpus of the
offending ship. It is distinct from an action in personam which
is a proceeding inter-partes founded on personal service on
Defendant within jurisdiction, leading to a judgment against
the person of the Defendant. In an action in rem no direct
demand is made against the owner of the res personally
(Maritime Liens by D R Thomas, Volume 14, British Shipping
Laws)."
16-IA(L) 6892.24 in COMAS 21.2023.doc
4. The aforesaid pronouncement has been followed by this Court
in the case of Anand Prakash Gupta and others vs. Sale Proceeds of
Uma Prem and others reported in MANU/MH/1135/2020 and in an
unreported Judgment of this Court dated 29 th November 2022, in
Angre Port Private Limited v. Sale Proceeds of GP Asphalt I [IMO No.
9120891]. In view of the aforesaid enunciation, the Plaintiff /
Applicant is entitled to proceed in rem against the sale proceeds of
the defendant vessel, for enforcement of its claim.
5. The Plaintiff had issued the Writ of Summons on 25 th October
2023 which was returned as "Unclaimed". On 30 th January 2024, the
Writ of Summons was published in two local news papers i.e "Free
Press Journal" which is an English Daily and "Navshakti" which is a
Vernacular (Marathi) Daily and also served by email upon the
Owners of the Defendant Vessel on 31st January 2024. Although, the
Writ of Summons has been duly served.
6. The Plaintiff is a seafarer, who was employed on board the
Defendant Vessel, MV BRAHMAPUTRA DOLPHIN(IMO No.
7608916 ), in Rank of Chief Engineer, employed by the erstwhile
owners of the Defendant vessel. The Plaintiff has not received his
wages for the period from 05.03.2019 to 20.09.2019.
16-IA(L) 6892.24 in COMAS 21.2023.doc
7. The details of the Plaintiff's claim for wages appears in
paragraph 3 of the Interim Application. I have perused the
Employment Agreement with the erstwhile owners of the Defendant
Vessel; the Continuous Discharge certificate and Plaintiff's Passport
evidencing the Plaintiff's service on board the Defendant Vessel;
Articles of Agreement signed by the Plaintiff and Owners of the
Defendant Vessel; the sign on/ sign off records issued by the Bureau
of Immigration; Testimonial of Sea Service issued by the Master of
the Defendant Vessel, which are annexed to this Application. The
Plaintiff also lodged his grievance with the Office of the Shipping
Master for unpaid wages. The Office of the Shipping Master by
Circular dated 16th November 2022 directed the seafarers to take
necessary actions before this Court. The Plaintiff's complaint and the
circular dated 16th November 2022 is also annexed herewith.
8. The Plaintiff has claimed interest at the rate of 8% p.a. on the
principal claim amount of Rs. 12,28,552/- from the date of
repatriation till 31st July 2023 and thereafter till payment/realisation.
9. Having gone through the Interim Application seeking summary
judgment and after hearing the learned Advocate appearing for the
16-IA(L) 6892.24 in COMAS 21.2023.doc
Applicants/Plaintiffs, I am satisfied that the Applicants are entitled to
a summary judgment under Order XIIIA of the CPC, 1908. The
Applicants/Plaintiff is seafarer who was employed on board the
vessel and has a Maritime claim and lien against the Vessel/ her sale
proceeds in terms of Section 4 (1) (o) read with Section 9(1) (a) of
the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act,
2017. Further, none have come forward to dispute the claim of the
Applicants/Plaintiffs.
10. After perusing the documents annexed to the Plaint and the
Interim Application, I am satisfied that the Defendant has no real
prospect of successfully defending the claim and there is no other
compelling reason why the claim made by the Applicants should not
be disposed of before recording of oral evidence.
11. It is in these circumstances, that there shall be an order and
decree in favour of the Applicants in terms of prayer clause (a):
a. That the Defendant be ordered, directed and decreed to
pay to the Plaintiffs the sum of INR 12,28,552/- (Indian
Rupees Twelve Lakhs Twenty Eight Thousand Five Hundred
and Fifty Two Only) along with interest thereon at the rate of 8
16-IA(L) 6892.24 in COMAS 21.2023.doc
% p.a. from the date of their repatriation till 31.07.2023
amounting to Rs.3,79,673/- (Indian Rupees Three lakhs
Seventy Nine Thousand Six Hundred and Seventy Three only),
aggregating to Rs.16,08,225/- (Indian Rupees Sixteen lakhs
Eight Thousand Two Hundred and Twenty Five only) and
further interest on the principal claim amount INR 12,28,552/-
(Indian Rupees Twelve lakhs Twenty Eight Thousand Five
hundred and Fifty Two only) from the 1st August 2023 till
payment / realization, plus costs of Rs. 2,00,000/-, aggregating
to INR 18,08,225/-(Indian Rupees Eighteen lakhs Eight
Thousand Two Hundred and Twenty Five only), as per the
Plaintiff's Particulars of Claim, Exhibit M hereto.
12. In light of the order passed in this Application, the Suit itself
now stands disposed of as the same is decreed. It is however kept
pending only for the purpose of deciding priorities and pay out.
13. The drawn up decree / order is dispensed with.
14. The Interim Application is disposed of accordingly.
[R.I. CHAGLA, J.]
