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AS/2/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
ADMIRALITY
SUIT No.2 of 2010
===================================================
ECKHARDT
MARINE GMBH - Plaintiff(s)
Versus
M
V D D MASTER - Defendant(s)
===================================================
Appearance
:
MR MIHIR THAKORE, SR. ADVOCATE, MR. PRASHANT ASHER, MR
SANDEEP SINGHI, ADVOCATES for SINGHI & CO
for Plaintiff(s) : 1,
None for Defendant(s) :
1,
===================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
Date
: 17/02/2010
ORAL
ORDER
This
suit has been presented by the plaintiff seeking arrest of defendant
Vessel i.e. m.v.
D.D. Master in the following circumstances.
The
case of the plaintiff is that it is a Company incorporated
under the Laws of Germany and carries on business of purchase and
sale of ocean going vessels and during the course of its business it
had entered into a contract dated 18.01.2010 for purchase of
defendant vessel with the owners of the defendant vessel on the
terms and conditions and for the consideration more particularly
stated in the contract. Pursuant to the said contract, the plaintiff
had deposited in escrow a
sum of US$ 284,846, as consideration for the performance of their
obligations, in a bank account to be jointly operated by the
plaintiff and the owners of the defendant vessel as per the terms of
the contract.
The
submissions made by learned senior counsel are that the owners
of the defendant vessel did not perform their contractual
obligations and have also not returned the amount of US$ 284,846
deposited by the plaintiff and thereby caused loss and/or damage to
the plaintiff for a sum of US$ 284,846 and other claims arising out
of the said contract which aggregates to the tune of US$
17,95,650.85. The owners of the defendant vessel do not have any
other significant assets within jurisdiction of this High Court, to
meet or secure the plaintiff’s claim, save and except the defendant
vessel, whose ownership, the owners are at present attempting to
transfer. Hence, it was submitted that defendant vessel, which is at
present within territorial
jurisdiction of this High Court, i.e. in the Port and Harbour of
Bhavnagar/Alang Anchorage, may be arrested in satisfaction of the
maritime lien of the plaintiff.
It
is required to be noted that Special Civil Suit No.1 of 2010 has
been instituted by one Sarvag Shipping Services Private Limited
against the plaintiff, the defendant and others and one of the
reliefs prayed for is arrest of the vessel. Hence, the order made
hereinafter shall be subject to any order which may be made in the
suit affecting the movement of the vessel.
It
is also required to be noted that admittedly, as per terms of
contract, the parties are governed by an arbitration clause and
regardless of pendency of this suit as well as Special Civil Suit
before the Court at Bhavnagar, the plaintiff is directed to invoke
the same by issuing necessary notice to the defendant for invoking
the jurisdiction of arbitral tribunal. Hence, on the returnable date
the Court shall also consider whether the suit is required to be
kept pending or not and record a decision, after hearing both the
sides on the same.
Having
heard the learned Counsel it is hereby ordered that defendant Vessel
i.e. m.v.
D.D. Master
flying the flag of Saint Vincent and Grenadines together with her
hull, engines, gears, tackle, machinery, bunkers, apparel, plants,
furniture, fixtures, equipment and all other appurtenances be
arrested by a warrant of arrest, subject to the plaintiff furnishing
the usual undertaking accompanied by a deposit of Rs.10,00,000/-
(Rupees Ten lacs). The amount of deposit is directed to be made with
the Registry of this Court on or before 24.02.2010, failing which
the order of arrest is liable to be vacated.
NOTICE
returnable on 03.03.2010. It will be open to the defendant to put in
appearance and approach this High Court even prior to the returnable
date by giving advance notice to the plaintiff and/or the advocates
of the plaintiff for vacation and/or necessary modification of the
order.
The
Port Officer, Bhavnagar/Alang and
the Customs Authority be informed accordingly. Direct Service today
by facsimile message (fax) at the cost of the plaintiff is
permitted.
Sd/-
[D. A.
MEHTA, J]
Bhavesh*
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