Calcutta High Court
Agritrade International Pvt. Ltd vs The Owners & Parties In Vessel M. T. ... on 5 June, 2023
O-16
IN THE HIGH COURT AT CALCUTTA
Admiralty Jurisdiction
ORIGINAL SIDE
IA NO. GA/4/2023
In AS/10/2006
AGRITRADE INTERNATIONAL PVT. LTD.
Vs
THE OWNERS & PARTIES IN VESSEL M. T. BEL
BEFORE:
The Hon'ble JUSTICE RAVI KRISHAN KAPUR
Date : 5th June, 2023
Appearance:
Mr. K. Thaker, Adv.
Mr. Amitava Majumdar, Adv.
Mr. S. Mitra, Adv.
Mr. S. Kundu, Adv.
The Court:- Notwithstanding, service having been effected, the plaintiff
remains unrepresented. Affidavit of Service filed by the defendant no.2 be kept
with the records.
This is an application filed by the defendant no.2 seeking dismissal of the
suit and vacating of the interim order.
In or around August, 2006 the plaintiff had filed this suit praying, inter
alia, for the following reliefs:-
(a) Decree directing the defendants to furnish security for the sum of US$
902,480 equivalent to about Rs.4.20 crores as mentioned in the plaint.
(b) Arrest of the vessel, MT Belicia lying at Kidderpore Docks, Kolkata along
with her tackle, apparel and furniture.
(c) Appraisal and sale of the vessel, MT Belicia along with her tackle,
apparel and furniture and for the payment of the proceeds thereof for the
purpose of securing the claim of the plaintiff as mentioned in the plaint.
(d) Injunction,
(e) Receiver,
(f) Attachment,
(g) Costs,
(h) Further and other reliefs.
Upon filing of this suit, by an order dated September 4, 2006 the
defendant vessel was arrested subject to payment of security. Ultimately, by an
order dated 18 September, 2006 upon the defendant owners furnishing security
in the form of a bank guarantee, the order of arrest stood vacated.
It is contended on behalf of the defendant no.2 that the plaintiff has taken
no steps whatsoever since the filing of the suit. The Writ of Summons has also
not been served on the defendant no.2. The plaint discloses no cause of action.
In any event, notwithstanding a categorical averment in the plaint, the
arbitration clause contained in the charterparty has not yet been invoked by the
plaintiff. The suit as framed is simply an inter partes suit for interim reliefs
pending arbitration and as such not maintainable.
Paragraph 17 of the plaint reads as follows:
"The Charter Party mentioned above contained an arbitration clause,
which provides that-
Any dispute arising from the making, performance or termination o0f
the Charter Party shall be settled in London, the Owner and
Charterer each appointing an arbitrator, who shall be a merchant,
broker or individual experienced in the shipping business; the two
chosen, if they cannot agree, shall nominate a third arbitrator who
shall be an Admiralty lawyer. Such arbitration shall be conducted in
conformity with the provisions and procedure of the English Law and
a judgment of the Court shall be entered upon any award made by
the said arbitrators".
"In view of the arbitration clause the plaintiff will have to proceed by
way of arbitration to enforce its claim against the defendant No.2. But
the plaintiff is entitled to institute the present proceedings for the
purpose of obtaining security for such maritime claim, which will have
to be ultimately determined in accordance with the arbitration clause
in the Charter Party." [emphasis supplied]
Admittedly, no arbitration proceeding has been commenced till date. The
suit as framed is only for interim reliefs. The suit is an inter partes suit for
interim reliefs pending arbitration even if it be for the limited purpose of
restraining dissipation of assets of the defendants and is not maintainable.
[Bharat Aluminium Company vs. Kaiser Aluminium Technical Services Inc. (2012)
9 Supreme Court Cases 552 @ Para 175 and Rushab Ship International LLC &
Ors. vs. Bunkers Onboard the Ship M.V. African Eagle and the Freight Due for
Transportation & Ors. 2014 SCC OnLine Bom 620 @ Paras 33, 38 and 51]
On a plain and meaningful reading of the plaint, the suit is for securing an
alleged maritime claim without any final relief claimed in respect thereof. Despite
the categorical averment by the plaintiff to proceed by way of arbitration to
enforce its claim against the defendant no.2, no steps whatsoever have been
taken by the plaintiff to commence the arbitration. Moreover, this suit
contemplates safeguarding the property which the plaintiff may or may not be
entitled to proceed against. The plaintiff's claim would depend on the outcome of
an arbitration proceeding in a foreign country and outside the jurisdiction of this
Court which is contingent, clearly speculative and therefore, gives rise to no
cause of action. In any event, any such right is now ex facie barred by limitation.
The plaintiff has taken no steps to proceed with the suit or to continue the same.
This suit is only for interim reliefs pending an arbitration outside India. In such
circumstances, the plaint discloses no cause of action and is liable to be
dismissed.
Accordingly, GA/4/2023 stands allowed.
AS/10/2006 stands dismissed. Interim orders stand vacated.
The Registrar Original Side is directed to return the original bank
guarantees furnished pursuant to the order dated 4 September, 2006 as
expeditiously as possible and preferably within a period of 14 (fourteen) days
from the date of communication of this order.
(RAVI KRISHAN KAPUR, J.)
D.Ghosh
