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AS/720/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
ADMIRALITY
SUIT No. 7 of 2008
==========================================
ADANI
ENTERPRISES LTD. - Plaintiff(s)
Versus
M
V TRUBEZH & 2 - Defendant(s)
==========================================
Appearance
:
MR DEVANG
NANAVATI for MRS VD NANAVATI for Plaintiff(s) :
1,
None for Defendant(s) : 1 -
3.
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CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 23/09/2008
ORAL
ORDER
1. Heard
Mr. Devang Nanavati, learned advocate for the plaintiff.
2. The
learned advocate has submitted that the order for arrest of vessel
MV TRUBEZH together with her Hull, Chattel, Engine,
Machineries, equipments, spares, gears appurtenance and paraphernalia
is required to be passed against the claim of the plaintiff in
Admirality Suit No.7 of 2008.
3. Mr.
Devang Nanavati, learned advocate for the plaintiff has drawn the
attention of the Court to the Shipment Advice at Page 4 of the
compilation to point out that the expected date of arrival at the
discharge port was 21st May, 2008. It is pointed out that
the ship arrived at the Dharamtar Port (India) on 30th
May, 2008 and out of the total cargo, the vessel had discharged 7,125
metric tonnes cargo to the plaintiff’s Sister Company i.e. Adani
Global Private Limited. From the document annexed at Page 46/U which
is a Commercial Invoice evidencing sale in favour of Aarti Industries
Limited, it is pointed out that the said consignment was sold at 700
dollars per metric tonne. Attention is drawn to the e-mail letter at
Page 81 of the compilation to point out that in view of the delay
caused in the arrival of the consignment to the Port of Mundra, they
have now received an offer for the said goods at 425 US Dollars. It
is accordingly submitted that in view of the delay caused in the
arrival of the vessel, the plaintiff has suffered considerable
damages inasmuch as the price of Sulphur has come down to 425 US
Dollars whereas the plaintiff could have obtained 700 US Dollars, had
the consignment reached on time. It is further pointed out that the
plaintiff has purchased Sulphur at an average price of 614 US Dollars
per metric tonne. Hence, the defendants be directed to provide
security at least to the extent of actual loss caused to the
plaintiff.
4. Considering
the submissions advanced by the learned advocate for the plaintiff
based upon the documents on record, it appears that there is a claim
of loss and damages of Rs.8,61,14,091/- to the plaintiff being the
amount claimed by the plaintiff from the defendants. Having gone
through the plaint and considering the submissions of the learned
advocate for the plaintiff, it prima facie appears that the
plaintiff would be entitled to claim security from the owners of MV
TRUBEZH .
5. The
learned advocate for the plaintiff submitted that unless MV
TRUBEZH together with her Hull, Chattle, engine, machineries,
equipments, spares, gears, appurtenance and paraphernalia is
arrested, the plaintiff would suffer irreparable loss in the event MV
TRUBEZH is permitted to sale away without furnishing the
security, as the plaintiff will have no scope to realise the amount.
6. Considering
the prima facie case established by the plaintiff, this court
is of the view that the plaintiff will be put to irreparable loss and
injury and, therefore, it is necessary to arrest MV TRUBEZH
presently lying in the waters of Port of Mundra, Gujarat in
connection with the claim raised in Admirality Suit No.7 of 2008.
7. This
Court do order that the Registrar of this Court do issue an order for
arrest of MV TRUBEZH together with her hull, chattle, engine,
machineries, equipments, spares, gears, appurtenance and
paraphernalia, at present lying in the waters of Port of Mundra,
Gujarat and that the warrant of arrest be executed at any time of the
day or night or on Sundays or Holidays and this Court do further
order that the Port Officer at Mundra and the Superintendent of
Customs at Port of Mundra, Gujarat do effect the arrest of MV
TRUBEZH at Port of Mundra, or such other place wherever she may
be, within the territorial waters of India and this Court do further
order that if the defendant vessel and/or those interested in her,
deposit in this Court a sum of Rs.1.5 million US Dollars together
with interest at the rate of 15% per annum from the date of filing of
the suit till payment/realisation to the satisfaction of the
Registrar of this Court as security towards the satisfaction of the
plaintiff’s claim in the suit, the said warrant of arrest shall not
be executed against the defendants.
8. The
Port Officer and the Superintendent of Customs at Mundra, Gujarat are
directed to arrest the vessel MV TRUBEZH at present lying at
Port of Mundra, Gujarat within the territorial waters of India and to
keep the vessel under arrest until further orders of this Court. It
is further ordered that the Port Officer and the Superintendent of
Customs at Mundra, Gujarat shall render all assistance to the
plaintiff in effecting the warrant of arrest on the vessel MV
TRUBEZH . It is clarified that the arrest of the vessel shall
not come in the way of the ship discharging its cargo.
9. It
will be open for the learned advocate for the plaintiff to
communicate the above order by Fax at their own cost and the
authorities are directed to act on the fax copy of the order.
10. The
undertaking of the plaintiff be filed as per Code of Civil Procedure,
1908. Such undertaking to be filed by the plaintiff on or before
24th September, 2008.
11. Notice
to the defendants returnable on 06th October, 2008. It is
made clear that it will be open for the defendants to approach this
Court even prior to the returnable date, by giving 48 hours’ advance
notice to the plaintiff and/or its advocates for necessary
modification of this order.
12. Office
is directed to serve the warrant of arrest on the Master of the
vessel MV TRUBEZH through her agent and send a copy thereof to
the Port Officer and the Superintendent of Customs at Mundra,
Gujarat.
Direct
Service is permitted.
(
Harsha Devani, J. )
hki
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