Orissa High Court
Alphard Maritime Ltd vs Ocean Jade (Imo on 2 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
instructed by 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
instructed by 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 12
CORAM:
JUSTICE M.S. SAHOO
ORDER
02.05.2025
(Hybrid Mode)
I.A. No.8 of 2025, I.A. No.11 of 2025,
I.A. No.16 of 2025 and I.A. No.15 of 2025
Order No.
09. 1. I.A. No.8 of 2025, I.A. No.11 of 2025, I.A. No.16 of
2025 and I.A. No.15 of 2025 were taken up together on
30.04.2025. In terms of the earlier order dated
30.04.2025 the matter was placed before Hon'ble the
Chief Justice for nomination of appropriate Bench to
take up the I.A. No.8 of 2025, I.A. No.11 of 2025, I.A.
No.16 of 2025 and I.A. No.15 of 2025 arising out of
Admiralty Suit. As per the endorsement of Hon'ble the
Chief Justice dated 01.05.2025 the matter is assigned
and listed before this Bench.
2. Heard the learned Senior Counsel Mr. D.P. Nanda
instructed by Mr. Samvit Mohanty and Mr. Anurag Pati
for the plaintiff. The learned Senior Counsel refers to
the paragraphs-15, 16, 17, 18 and 23 of the
plaint to submit that the amendment sought for will
not change the nature and character of the suit
inasmuch as the relief sought for remains to be
'injunctive' and 'declaratory'. By the proposed
amendment the plaintiff seeks to enforce his right for
securing and indemnifying his claim in the suit
pending before the Gujarat High Court as well as the
claim in an International Commercial Arbitral
proceeding initiated at Singapore.
3. The learned Senior Counsel to support his
submissions relies on the decision rendered by the
Bombay High Court (Full Bench) in J.S. Ocean Liner
LLC vrs. M.V. Golden Progress: 2007 SCC OnLine
Bom 69: 2007 AIHC 1933 (FB) decided on
25.01.2007 in Admiralty Suit No.11 of 2005.
Paragraphs 2, 3, 30, 35, 36, 45, 48, 55, 56, 57, 60, 61,
64, 68, 72, 73, 77 and 78 of the said decision (SCC
OnLine print) are relied on. The conclusions as
recorded by the Full Bench of three learned Judges of
the said High Court at paragraph 78 of SCC OnLine, is
relied upon and reproduced herein.
"78. We shall, accordingly, articulate our
conclusions thus:
(i) An application under Section 9 of the
Arbitration and Conciliation Act, 1996 is not
maintainable for the arrest of the vessel for
obtaining security of an Award that may be
made in arbitration proceedings. The view to the
contrary in m.v. Indurva Valley, to that extent is
overruled.
(ii) An action in rem (in admiralty jurisdiction) for
recovery of the claim and arrest of the vessel
where the parties have agreed to submit the
dispute to arbitration can be maintained and in
such case if by way of an interim measure, the
vessel is arrested or the security provided to
obtain the release of the vessel, matter shall
proceed in accord with Article 7 of the
International Convention on Arrest of Ships,
1999.
(iii) If the proceedings are brought within the time
so ordered by the Court before the arbitral
tribunal, any final decision resulting therefrom
shall be recognised and given effect with respect
to the arrested ship or to the security provided in
order to obtain its release provided that the
defendant has been given reasonable notice of
such proceedings and a reasonable opportunity
to present the case for defence and in accord
with the provisions contained in Arbitration and
Conciliation Act, 1996.
(iv) With regard to clauses (ii) and (iii), it is,
however, clarified that retention of security shall
remain a matter of discretion and it shall be for
the court to pass appropriate order in that regard
after taking into consideration all relevant
circumstances. Let the notices of motion No. 2780
of 2005 and 3287 of 2005 be posted before the
Admiralty Judge for disposal in the light of our
answer to the reference."
4. The next decision relied on is also of the Bombay
High Court reported in 2018 SCC OnLine Bom 2730
rendered by learned Single Judge in Siem Offshore
Redri AS vrs. Altus Uber, the learned Senior Counsel
refers to paragraphs-2, 3, 4, 5, 35, 39, 52 to 56 of the
SCC OnLine report to buttress his submissions. The
conclusions as reflected in paragraphs 66 to 69 are
relied on and are reproduced herein.
"66. The above reasoning equally applies when
considering in rem arrest for the purpose of
obtaining security in a case where arbitration
proceedings had already been commenced,
applying the procedure devised by the Full Bench
in Golden Progress. It matters not whether
arbitration has been invoked or is yet to be
invoked.
67. Any other interpretation would not only
defeat the interest of justice but would be
contrary to the avowed objective of Courts and
Parliament to promote alternative dispute
resolution by way of arbitration or mediation. If a
party agrees to arbitration it cannot be that he is
to be deprived of his right in rem to obtain
security in respect of his maritime claim. Just as
a party who agrees to arbitration with the seat of
arbitration outside India (after 2015 amendment)
can apply for interim measures to a Court in
India under Section 9 of the Arbitration Act,
1996, irrespective of the fact that arbitration may
have already been invoked before any such
application is made, so also a party should not
be deprived of his right in rem to invoke
admiralty jurisdiction and obtain arrest of a ship
to secure his maritime claim even if arbitration
may have already been invoked. As noted earlier
also, after 2015 amendment, under Section
9 read with Section 2 of the Arbitration Act,
1996, a party can approach this Court for
securing the amount in dispute in the arbitration
even in the arbitration. Just because the party
cannot maintain an admiralty action in rem
under Section 9, can such a party be deprived of
a chance to secure its claim in arbitration? In
Golden progress (Supra) the Full Bench has in
paragraph 78 held that the Court has to devise a
procedure to permit a party who has agreed to
submit disputes to arbitration and as noted
earlier, there is no explicit legislation barring
such security.
68. Plaintiff had given their vessel Siem Marlin
on bareboat charter to MEDS under a bareboat
charter-party dated 13th May 2015. Thus MEDS
was the demise charterer of plaintiff's vessel.
Plaintiff has various claims for damages against
MEDS for breach of charter-party. Plaintiff's
claims are maritime claims under Section 4(h) of
the Admiralty Act, 2017 because these are
claims arising out of an agreement relating to the
hire of the vessel.
69. As per Section 5(2) read with Section
5(1)(b) of the Admiralty Act, 2017, plaintiff is
entitled to arrest a vessel which is either owned
by or on demise charter to MEDS when the arrest
is effected."
5. It is submitted that Siem Offshore(supra) is after
the Admiralty Act, 2017 came into force. The learned
Senior Counsel relies on the observations of the
Supreme Court in Cuddalore Powergen Corporation
Ltd. vrs. Chemplast Cuddalore Vinyls Limited and
another: 2025 SCC OnLine SC 82. Reliance upon
Cuddalore Powergen (supra) is regarding scope of
Order 2 Rule 2 of the Code of Civil Procedure, 1908.
The relied on paragraphs-34 and 38 are reproduced
herein:
"34. Having heard the learned counsel
appearing for the parties and having gone
through the materials on record, the only
question that falls for our consideration is as
follows: -
i. Whether in the facts & circumstances of
the present case, the principles enumerated
under Order II Rule 2 CPC would bar the
institution of a second suit and warrant
rejection of the plaint filed by the
respondent no. 1 herein in O.S. No. 122 of
2008?
38. Order II Rule 2(1) requires every suit to
include the whole of the claim to which the
plaintiff is entitled to in respect of a particular
cause of action. However, the plaintiff has an
option to relinquish any part of his claim for the
purpose of bringing the suit within the
jurisdiction of any court. Order II Rule 2(2)
contemplates a situation where a plaintiff omits
to sue or intentionally relinquishes any portion of
the claim which he is entitled to make. If the
plaintiff so acts, then he shall not, afterwards,
sue for the part or portion of the claim that has
been omitted or relinquished. It must be noticed
that Order II Rule 2(2) does not contemplate the
omission or relinquishment of any portion of the
plaintiff's claim with the leave of the court so as
to entitle him to come back later to seek what has
been omitted or relinquished. Such leave of the
court is contemplated by Order II Rule 2(3) in
situations where a plaintiff being entitled to more
than one relief on a particular cause of action,
omits to sue for all such reliefs. In such a
situation, the plaintiff is precluded from bringing
a subsequent suit to claim the relief(s) earlier
omitted except in a situation where leave of the
court had been obtained. It is, therefore, clear
from a conjoint reading of the provisions of Order
II Rules 2(2) and (3) CPC that the aforesaid two
sub-rules of Order II Rule 2 contemplate two
different situations, namely, where a plaintiff
omits or relinquishes a part of a claim which he
is entitled to make and, secondly, where the
plaintiff omits or relinquishes one out of the
several reliefs that he could have claimed in the
suit. It is only in the latter situation where the
plaintiff can file a subsequent suit seeking the
relief omitted in the earlier suit, provided that at
the time of omission to claim the particular relief,
he had obtained the leave of the court in the first
suit."
6. The learned Senior Counsel further referrs to the
decision rendered by the Supreme Court in Life
Insurance Corporation of India vrs. Sanjeeb
Builders Private Limited and another : (2022) 16
SCC 1. The judgment is dealt with at length as it deals
with the scope of Court's power to allow amendment of
pleadings as available under Order 6 Rule 17 of CPC
read with Order 2 Rule 2 of CPC. The relied on
paragraphs-71 to 71.11 are reproduced herein:
"71. Our final conclusions may be summed up
thus:
71.1. Order 2 Rule 2 CPC operates as a bar
against a subsequent suit if the requisite
conditions for application thereof are satisfied and
the field of amendment of pleadings falls far
beyond its purview. The plea of amendment being
barred under Order 2 Rule 2 CPC is, thus,
misconceived and hence negatived.
71.2. All amendments are to be allowed which
are necessary for determining the real question in
controversy provided it does not cause injustice or
prejudice to the other side. This is mandatory, as
is apparent from the use of the word "shall", in the
latter part of Order 6 Rule 17 of the CPC.
71.3. The prayer for amendment is to be allowed:
71.3.1. If the amendment is required for
effective and proper adjudication of the
controversy between the parties.
71.3.2. To avoid multiplicity of proceedings,
provided
(a) the amendment does not result in injustice
to the other side.
(b) by the amendment, the parties seeking
amendment do not seek to withdraw any
clear admission made by the party which confers
a right on the other side and
(c) the amendment does not raise a time barred
claim, resulting in divesting of the other side of a
valuable accrued right (in certain situations).
71.4. A prayer for amendment is generally
required to be allowed unless:
71.4.1. By the amendment, a time barred claim is
sought to be introduced, in which case the fact
that the claim would be time barred becomes a
relevant factor for consideration.
71.4.2. The amendment changes the nature of the
suit.
71.4.3. The prayer for amendment is malafide, or
71.4.4. By the amendment, the other side loses a
valid defence.
71.5. In dealing with a prayer for amendment of
pleadings, the court should avoid a hypertechnical
approach, and is ordinarily required to be liberal
especially where the opposite party can be
compensated by costs.
71.6. Where the amendment would enable the
court to pin-pointedly consider the dispute and
would aid in rendering a more satisfactory
decision, the prayer for amendment should be
allowed.
71.7. Where the amendment merely sought to
introduce an additional or a new approach
without introducing a time barred cause of action,
the amendment is liable to be allowed even after
expiry of limitation.
71.8. Amendment may be justifiably allowed
where it is intended to rectify the absence of
material particulars in the plaint.
71.9. Delay in applying for amendment alone is
not a ground to disallow the prayer. Where the
aspect of delay is arguable, the prayer for
amendment could be allowed and the issue of
limitation framed separately for decision.
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.
71.11. Where the amendment is sought before
commencement of trial, the court is required to be
liberal in its approach. The court is required to
bear in mind the fact that the opposite party
would have a chance to meet the case set up in
amendment. As such, where the amendment does
not result in irreparable prejudice to the opposite
party, or divest the opposite party of an
advantage which it had secured as a result of an
admission by the party seeking amendment, the
amendment is required to be allowed. Equally,
where the amendment is necessary for the court to
effectively adjudicate on the main issues in
controversy between the parties, the amendment
should be allowed. (See Vijay Gupta v. Gagninder
Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)."
7. It is submitted that the power to allow
amendment of pleadings as provided in Order 6 Rule
17 of CPC should be exercised liberally. The
defendant's objection is of any relevance only when the
proposed amendment takes away valuable accrued
right and the claims is not barred by time. Otherwise
amendment should be allowed by the Court.
8. Paucity of time intervenes. For further hearing of
the matter, on consent list on 06.05.2025. The matter
shall retain its position in the cause list along with
other matters not reached.
(M.S. Sahoo)
Judge
Radha/Jyostna
