Orissa High Court

Alphard Maritime Ltd vs Ocean Jade (Imo on 8 May, 2025

Author: M.S. Sahoo

Bench: M.S. Sahoo

 IN THE HIGH COURT OF ORISSA AT CUTTACK

             ADMLS No.2 of 2025

ALPHARD MARITIME LTD.         ....        Plaintiff

                    Mr. D.P. Nanda, Sr. Advocate
        along with Mr. Samvit Mohanty, Advocate
                       Mr. Anurag Pati, Advocate
                 Mr. Adwitiya Satpathy, Advocate
                     Ms. Jimisha Dalal, Advocate
                   Ms. Nitansha Nema, Advocate
                    Mr. Aryan Sharma, Advocate
                       Ms. Shivani Das, Advocate

                   -versus-

OCEAN JADE (IMO:              ....    Defendants
9660750) and another

            Mr. Gautam Mukherji, Sr. Advocate
       along with Mr. S.S. Mohanty, Advocate
               Ms. Arusmita Acharya, Advocate
                 Ms. Ankita Mukherji, Advocate
                   Mr. Amlan Mishra, Advocate
                  Mr. S.S. Moharana, Advocate
                   Ms. Deepsha Dhal, Advocate


        Mr. S.K. Padhi, Sr. Advocate along with
        Mr. Ipsit Aurobindo Acharya, Advocate
                     Mr. Nitesh Jain, Advocate
                        Mr. Atul Jain, Advocate
                    Ms. Juhi Mathur, Advocate
                   Mr. Piyush Panda, Advocate
                   (For intervenors)



                                          Page 1 of 14
                                  CORAM:
                             JUSTICE M.S. SAHOO
                                   ORDER

08.05.2025 (Hybrid Mode) Order No.

12. 1. The learned senior counsel appearing for the

plaintiff refers to the order dated 06.05.2025 to point

that at internal page 10, in last but three lines of

paragraph-5 there is a typographical error. In the last

but 3rd line 'resolved' is to be read as 'reserved'.

2. The word 'resolved' is to be corrected in the said

order as indicated above as 'reserved'. Correction be

carried out as per rules.

3. Mr. D.P. Nanda, learned counsel in response to

the submissions of Mr. Mukherjee learned senior

counsel submits that though the defendants find flaw

in not mentioning the 'Gujarat admirality suit' in the

plaint as well as contend that the suit before this Court

is in aid of the admirality suit pending at Gujarat

before the High Court, Section 5(1) of the Admiralty

(Jurisdiction and Settlement of Maritime Claims Act,

2017) itself gives the answer to the said proposition.

"5(1).The High Court may order arrest of any vessel which is within its jurisdiction for the purpose of providing security against a maritime claim which is the subject of an admiralty proceeding, where the court has reason to believe that--(a)the person who owned the vessel at the time when the maritime claim arose is liable for the claim and is the owner of the vessel when the arrest is effected; or(b)the demise charterer of the vessel at the time when the maritime claim arose is liable for the claim and is the demise charterer or the owner of the vessel when the arrest is effected; or(c)the claim is based on a mortgage or a charge of the similar nature on the vessel; or(d)the claim relates to the ownership or possession of the vessel; or(e)the claim is against the owner, demise charterer, manager or operator of the vessel and is secured by a maritime lien as provided in section 9."

4. It is submitted that since section 5(1) refers to an

"...Subject of an admiralty proceeding...", the suit

before this Court is also in aid of another admirality

suit and the claim against the vessel is the subject of

an admiralty suit pending before the Gujarat High

Court. It is submitted that it is for securing that claim

and also for securing the value of the vessels those are

subject matter of the suit at Gujarat. It is submitted

that reliance of the defendants on Rushab Ship

International LLC v. Bunkers onboard Ship M.V.

African Eagle (rendered by the Bombay High Court) :

2014 SCC OnLine Bom 620 : (2014) 4 Bom CR 269

has to be considered in the context of the fact that

African Eagle (supra) is a pronouncement prior to

coming into force of the 2017 Act. The learned senior

counsel refers to observations of Siem Offshore Redri

AS vrs. Altus Uber: 2018 SCC OnLine Bom 2730

paragraph-37 onwards (of the SCC OnLine print) to

contend that the observation in African Eagle (supra)

was rendered in a different context prior to the 2017

amendment.

5. Responding to the contention of the learned

senior counsel Mr. Mukherjee that defendants in the

present suit before this Court are not party before the

Gujarat High Court in the pending suit there, Mr.

Nanda submits that the defendants do not dispute that

they are the owners of the vessels, the vessels have

been named and are identified being subject matter

of/party to the suit before this Court.

Referring to the Court-fees Act, 1870 section 7 i.e

computation of fees payable in certain suits Mr. Nanda

relies on section 7(iv)(c) i.e. for a declaratory decree

and consequential relief, 7(iv)(d) for an injunction and

7(iv)(f) for accounts.

Referering to the response of the learned senior

counsel Mr. Mukherjee regarding the scope and

applicability of Order VII, Rule11-(a), it is submitted by

Mr. Nanda that Order VII, Rule11-(a) provides that

only if the plaint does not disclose a cause of action it

shall be rejected and in the proposed amendment the

cause of action is disclosed.

6. It is submitted by the senior counsel Mr. Nanda

that regarding valuation of the suit it is the plaintiff

who will value the suit. On the said proposition, he

relies on judgment of the Supreme Court reported in

Sri Rathnavarmaraja v. Vimla Smt., reported in AIR

1961 SC 1299 (SCC OnLine print). He refers to

paragraphs 2 and 3 of the said judgment :

"2. The Court Fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court fee on his plaint. Whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under Section 115 of the Code of Civil Procedure is strictly conditioned by clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that

the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court fee payable on the plaint. But counsel for the defendant says that by Act 14 of 1955 enacted by the Madras Legislature which applied to the suit in question, the defendant has been invested with a right not only to contest in the trial court the issue whether adequate court fee has been paid by the plaintiff, but also to move the High Court in revision if an order contrary to his submission is passed by the court. Reliance in support of that contention is placed upon sub-section (2) of Section 12. That sub- section, insofar as it is material, provides:

"Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the court shall fix a date before which the plaint shall be amended in accordance with the court's decision and the deficit fee shall be paid...."

3. But this section only enables the defendant to raise a contention as to the proper court fee payable on a plaint and to assist the court in arriving at a just decision on that question. Our

attention has not been invited to any provision of the Madras Court Fees Act or any other statute which enables the defendant to move the High Court in revision against the decision of the Court of first instance on the matter of court fee payable in a plaint. The Act, it is true by Section 19, provides that for the purpose of deciding whether the subject-matter of the suit or other proceeding has been properly valued or whether the fee paid is sufficient, the court may hold such enquiry as it considers proper and issue a commission to any other person directing him to make such local or other investigation as may be necessary and report thereon. The anxiety of the Legislature to collect court fee due from the litigant is manifest from the detailed provisions made in Chapter Ill of the Act, but those provisions do not arm the defendant with a weapon of technicality to obstruct the progress of the suit by approaching the High Court in revision against an order determining the court fee payable. In our view, the High Court grievously erred in entertaining revision applications on questions of court fee at the instance of the defendant, when no question of jurisdiction was involved."

7. Referring to paragraph-3 of Sri Rathnavamaraju

(supra) it is further submitted that the anxiety of

legislature to collect court fee from the litigant does not

arm the defendants with a weapon of technicality to

obstruct a suit.

Summing up his submissions the learned senior

counsel files a memorandum indicating the issues

proposed on behalf of the plaintiff to be answered. The

said issues are reproduced herein:

"1. Whether non-payment of court fee within the time specified by the court followed by an application seeking modification of such order renders the suit liable for rejection under Or 7 R 11?

2. Whether there can be an automatic dismissal of suit (without passing a decree as required under Or 7 R 12 of the CPC)?

3. Can the plaintiff file an application for amendment under Or 6 R17 after such specified date fixed for the payment of court fee with an aim to reduce the quantum of court fee?

4. Whether the application under Or 6 R 17 to be considered prior to a decision is rendered on Or 7 R 11 application?

5. Whether non-payment of court fee creates any legal right in favour of the defendants for the purpose of consideration/rejection of amendment application under OR 6 R 17?

6. Whether the application under Or 6 R 17 filed by the plaintiff changes the nature and character of the suit?

The I.A. has been filed by the petitioner seeking

leave to be allowed to intervene in the present suit.

8. At the outset, learned Senior Counsel Mr. Padhi

appearing along with Mr. Acharya, learned counsel

submits he does not have to make any submissions in

response to the submissions of learned Senior Counsel

either by Mr. Nanda on behalf of plaintiff or by Mr.

Mukherjee on behalf of the defendants. Since it is

admitted by the parties that the property involved in

the present suit i.e. the two vessels are mortgaged to

the petitioner (intending interveners), petitioner's

substantial rights are involved. Consequence of the

order in the I.A. arresting the ships has directly

impacted the mortgaged property. He submits that at

this stage the Court is grappling with the vexed issues

i.e. whether the plaint is to be allowed to be amended;

whether court fee not being paid the plaint is to be

rejected; if at all the amendment is allowed whether as

a consequence what would be the valuation of the suit;

and whether on allowing the application for

amendment the Court fees suggested by the plaintiff

would be accepted as the correct valuation. It is

submitted by the learned Senior Counsel that he may

have further arguments as far as the intervention

application is concerned, however, for the present the

contentions would be confined to the issues raised in

the I.A for amendment. It is submitted that the

amendment to be allowed has to pass the scrutiny of

the tests laid down in Life Insurance Corporation of

India vrs. Sanjeev Builders Private Limited and

another : (2022) 16 SCC, relied on by the plaintiffs as

well as the defendants. Learned senior counsel refers

to paragraphs 71.4.3 and 71.10 of the judgment,

reproduced herein :

"71.4.3. The prayer for amendment is malafide, or

71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed."

9. Referring to the above quoted paragraphs of

LIC(supra), the learned senior counsel submits that

the Court has to see whether the proposed amendment

is afflicted by mala fide and whether amendment would

cause change of the nature and character of the suit or

result in change of the cause of action. The Court has

to see whether the case set up in the proposed

amendment is foreign to the case already set up in the

plaint. To give an instance he refers to the original

plaint where there has been no reference to any

pending admiralty suit before the Gujarat High Court

whereas in the proposed amendment the issue is all