ORDER
K.A. Puj, J.
1. The plaintiffs have filed this suit praying for an order of arrest and sale of the defendant Vessel towards satisfaction of a decree / award in favour of the plaintiffs. The plaintiffs have also prayed for an order and decree in favour of the plaintiffs and against the defendants for a sum of US $ 3,09,645.33 together with interest @ 12% p.a. from the date of filing of the suit till payment / realization or for security of the same sum pending arbitration.
2. It is the case of the plaintiffs that the plaintiffs had entered into Charter Party Agreement dated 27.10.2006 with the owners of the defendant Vessel for the use and hire of the defendant Vessel. Under this Charter Party Agreement, the defendants guaranteed that the Vessel was capable of visiting and doing business at various ports. The defendant is also doing the business of visiting various ports. The defendants guaranteed that the vessel’s condition and cargo holds were suitable for load/discharge of the intended cargo as best as a vessel of her type. As per the terms of the charter party agreement, Hire of USD 8000 per day was payable by plaintiffs to the defendants except for periods off hire under Clause 15 when time was lost. The Charter party provided for a lien to the plaintiffs upon the vessel for all monies paid in advance and not earned and any overpaid hire. Under Clause 45, the vessel was to be placed off hire for the period she failed to pass any hold inspection by independent surveyors appointed by the plaintiffs.
3. The plaintiffs mainly raised three issues in the present suit. Under the head Iran Claim, the plaintiffs have claimed for US $ 1,30,441.89. It is the case of the plaintiffs that owners of the defendant vessel have stated that owners have never refused Charterers for vessel’s call at Iran Ports. Although the plaintiffs could not quite understand what owners say in this respect. The owners have reminded that the Iran cargo was cancelled for obvious reasons which owners now seem to be forgetting. The Charterers were informed by the Agents that the vessel was blacklisted in Iran. As soon as Charterers become aware of this, the plaintiffs notified owners of the situation so that they would sort it out well in advance. Owners tried to wriggle out stating that it was another vessel with a similar name that was blacklisted. Upon investigation, the owner’s bluff was revealed when the IMO number matched between the subject vessel, and the blacklisted vessel.
4. The second claim made by the plaintiffs was with regard to over paid hire in relation to the Vessel’s unclean holds at load port. The same was also clearly stated in the correspondence exchanged between the plaintiffs and the defendants and the third claim is with regard to over paid hire at Mumbai in relation to delays to the Vessel in relation to the MMD clearance requirements.
5. Mr. S.N. Soparkar, learned Senior counsel appearing with Ms. Paurami B. Sheth for the plaintiffs has taken the Court through the various documents which are separately filed and referred to the various clauses of the Charter party agreement. They have also placed on record the e-mails sent by the plaintiffs to the defendants and pointed out that the terms contained in the Charter Party Agreement have been violated and as a result thereof, the plaintiffs have incurred huge losses. The plaintiffs are, therefore, entitled to recover the said losses from the defendant Vessel under the terms and conditions of the Charter Party Agreement. They have particularly referred to Clause 96 which says that in the event of loss of time from deficiency and/or default of men or deficiency of stores, fire, breakdown or damages to hull machinery or equipment, the same should be on the owner’s account.
6. Mr. Soparkar has further submitted that under the terms of the Charter Party Agreement, the defendants had guaranteed that the vessel could do business in ports including Iran, where she was not blacklisted. The plaintiffs had, accordingly, fixed business of loading a wheat cargo from Iran to UAE which they were unable to perform when they were surprised to find that the defendant vessel had in fact been blacklisted in Iran. The plaintiffs accordingly lodged their claims for losses caused with the defendants on 20.12.2007, 29.12.2007 and 03.01.2008. It is also submitted by Mr. Soparkar that before the defendant vessel arrived in Mumbai, the vessel’s agents informed the defendants that they had to fill up and submit a Grain / Stability and Calculation Form as per the ISO format since MMD clearance had to be obtained prior to vessel’s berthing. Despite this drawback, the defendants thereafter misleadingly tried to assure the plaintiffs that the vessel would be ready in all respects for loading cargo in bulk on arrival at Mumbai and that the vessels’ hatches were cleaned, free from loose scales / rust and ready in all respects to load cargo. The plaintiffs apprehended delay and objected to the false representation made by the defendants. The vessel arrived at Mumbai on 19.12.2007 but was not cleared by the MMD on account of the fact that the stability booklet available on board was of Panama when the port of registry was Kingston. The vessel was accordingly declared off-hire by the plaintiffs, since time was lost on this account. The plaintiffs repeatedly claimed that the defendants were in a breach of their contractual obligations and were not taking the matter seriously. The vessel’s surveyors repeatedly rejected the holds despite being re-invited by the defendants themselves. The vessel had been off-hired for 10.0868 days when excess hire of USD 80,694.44 had to be paid to the defendants. Bunkers of USD 17,472 were consumed during this off-hire period. This amount was claimed by the plaintiffs in the present suit.
7. Mr. Soparkar has further submitted that the claim made in the present suit is a maritime claim arising from damage done by a ship to cargo imported, and breach of a contract for the carriage of goods by a ship. The plaintiffs have a maritime claim and maritime lien against the defendant Vessel. Court’s attention was drawn to the provisions of Admiralty Courts Act, 1861 and also to the decision of the Hon’ble Supreme Court in the case of m.v. ELIZABETH and submitted that plaintiffs are entitled to a decree/order directing security for an award against the defendants and payment out of sale proceeds in an action in rem towards satisfaction of their maritime claim. He has further submitted that the plaintiffs have an enforceable right against the defendants, which right they are entitled to enforce against the defendant Vessel in an admiralty action in rem. On the basis of the above grounds, the plaintiffs have valued their claim for US $ 3,09,645.33 and accordingly the present suit is filed.
8. Reliance is placed on the decision of the Hon’ble Supreme Court in the case of Videsh Sanchar Nigam Limited v. M. V. Kapitan Kud and Ors. wherein reference was made to the decision of Moschanthy wherein the question was whether the admiralty action was vexatious and after following the ratio of Willmer, J. in St. Elefterio, it was held that action could not be successful. It was held that Courts should only stay the action on the ground when the hopelessness of the plaintiff’s claim is beyond doubt. If it is not beyond doubt but on the contrary, the plaintiff has an arguable, even though difficult, case even in law the action would be allowed to proceed to trial. It was, therefore, submitted that the plaintiffs’ case is neither vexatious nor fallacious. In any case, it is an arguable case and as per the decisions rendered by the Hon’ble Supreme Court, the Court should pass order regarding arrest of the Vessel. Mr. Soparkar has further submitted that in an admiralty jurisdiction, when the Vessel is within the territorial limit of this Court, the Court should exercise its jurisdiction in favour of the plaintiffs as once the Vessel goes out of the territorial jurisdiction, no remedy is available to the plaintiffs and hence, in the admiralty suit, order regarding arrest is a general rule and refusal is limited only in the cases where the claim is found to be vexatious.
9. Reliance is also placed on the decision of the Hon’ble Supreme Court in the case of M.V. Elisabeth and Ors. v. Harwan Investment & Trading Private Limited, Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa wherein it is observed that the admiralty jurisdiction is an essential aspect of judicial sovereignty which under the Constitution and the laws is exercised by the High Court as a superior Court of record administering justice in relation to persons and things within its jurisdiction. Power to enforce claims against foreign ships is an essential attribute of admiralty jurisdiction and it is assumed over such ships while they are within the jurisdiction of the High Court by arresting and detaining them.
10. Based on the documents placed before the Court as well as the facts stated and averments made in the plaint and having relied on the Charter Party Agreement as well as the decisions of the Apex Court, Mr. Soparkar has submitted that this is a fit case where the Court should pass an order regarding arrest of the Vessel.
11. Having heard learned advocates appearing for the plaintiffs and having gone through the Charter Party Agreement, documents produced before the Court as well as having considered the decisions relied upon, the Court is of the prima facie view that the plaintiffs have not made out any case so as to inspire the confidence of the Court to exercise its inherent jurisdiction for passing an order regarding arrest of the Vessel in question. Looking to the Charter Party Agreement, it is clear that it is executed on 27.10.2006. Initially, it was for a period of six months. Thereafter, the period was extended and under the last agreement, the period is extended by three months on 19.11.2007. As per this agreement, all pending accounts until redelivery of Vessel on close Mumbai will be settled between the owners and charterers within 10 days. There was no dispute during the subsistence of initial agreement nor there was any dispute during the course of first extension. Disputes were raised after the second extension and obvious motive is to withhold or to defer the payment of hire charges to the owner of the vessel.
12. The present suit is filed on 08.04.2008. The Charter Party Agreement came to an end sometime in the month of February, 2008. Even as per the say of the plaintiffs, the payments were made by the plaintiffs to the defendant Vessel on 10.01.2008 wherein it is specifically stated that without prejudice to charterers position under governing C/P and strictly under protest, Charterers advised owners that charterers were proceeding to remit to owners the net balance of hire as per Charterers’ 30th hire balance statement. As per the statement, the net amount due was US $ 59,993.15 which were said to have been paid by the plaintiffs to the defendant Vessel. Even as per plaintiffs’ e-mail dated 09.01.2008, there is reference regarding 31st hire statement, according to which the net amount due to owners is US $ 80,759.27. Thus, according to the plaintiffs’ own version, the amount was due and payable by the plaintiffs to the defendants. On or before handing over the Vessel, the payments appeared to have been made despite the fact that disputes were raised. The plaintiffs have neither withheld the payment nor have obtained any order of arrest when the Vessel was in their possession. It is only after the Charter Party Agreement has come to an end and necessary payments were said to have been made as well as the possession of Vessel was delivered to the defendants, the present suit was filed. It appears that the present suit is filed to thwart the apprehended action of the defendant Vessel against the plaintiffs for non-performance of their obligation under the Charter Party Agreement.
13. The issues raised in the present suit are highly disputed which cannot be considered to be real and genuine dispute. Even with regard to the Iran issue, the defendants made it clear in their e-mail dated 06.12.2007 that the Vessel had called following Iranian Port(s). bander Abbas – arrived 7.5.2006, sailed 12.05.2006 (not detained by PSC). Bander Imran Khomeini – arrived 2.12.2005, sailed 16.12.2005 (not detained by PSC). It was further stated that M.V. Al Mansoor – I was erroneously listed in the blacklist for which owners / Vessel cannot be held responsible. The defendants accordingly requested the plaintiffs to take up the matter with the Port authorities or to perform some other voyage until mater is absolutely sorted out with port authorities. The plaintiffs have therefore stated in their e-mail dated 20.12.2007 that as a gesture of goodwill and to cooperate with owners, charterers sailed the vessel in ballast incurring huge losses and in turn requested to SUB Charterers for alternative cargo, which finally SUB Charterers obliged and confirmed the current shipment from Mumbai to Jebel Ali. Hence, so far as this claim is concerned, the plaintiffs seemed to have given up their claim in December, 2007 and hence, it is not open for them to raise this issue in the present suit.
14. Even with regard to off hire issue, the delay cannot be attributed to the defendant Vessel. Even as per Addendum dated 19.11.2007 to the Charter Party Agreement, all necessary time required for time washing and holds to be for charterers time and account. Moreover, it was also stated by the defendants that hold condition was due to loading of rock phosphate. The documents which are placed before the Court are only in respect of the e-mails sent by the plaintiffs to the defendant Vessel. No reply of the defendant Vessel was produced before the Court which would enable the Court to appreciate the real controversy between the parties. The plaintiffs have also not produced any document satisfying the Court to the effect that SUB charterers have raised any claim against the charterers nor any order to that effect has been placed before the Court. All documents are only in the form of one sided e-mails and they do not inspire the confidence of the Court which would enable the Court to exercise its inherent jurisdiction to pass order regarding arrest of vessel in question.
15. Under the Charter Party Agreement itself, there is a clause regarding arbitration which says that if any dispute arises between owners and the charterers, the same shall be referred to three persons in London, one to be appointed by each of the parties and the third by the two so chosen and their decision shall be final. For the purpose of enforcing any award, this agreement may be made a rule of the Court. The Arbitrators shall be commercial shipping men conversant with shipping matters and affairs. Thus, it cannot be said that if the order of arrest is not passed, the plaintiff is without any remedy. Looking to the nature of the claims made by the plaintiffs in the present suit, it cannot be said that the same be considered either as maritime claim or maritime lien. Simply by stating so, the claim made by the plaintiffs cannot become a maritime claim or maritime lien. Since all the three claims are highly disputed one and there is no evidence to suggest that ultimately, even after going through the trial, the decree be passed in favour of the plaintiffs. The Court is, therefore, of the prima facie view that the claims made by the plaintiffs are absolutely frivolous and vexatious and there is no arguable case in favour of the plaintiffs which fall within the ratio laid down in the case of Videsh Sanchar Limited (Supra). The plaintiffs are, therefore, not entitled to any interim relief as prayed for. In any case, this is not a case where without hearing the other side, the Court shall pass the order of arrest of the Vessel in question. Even if the vessel is sailed out from the territorial jurisdiction of this Court, the plaintiffs have other remedies under the Charter Party Agreement.
16. With the aforesaid observation, the prayer for interim relief is not granted at this stage and notice to the defendant Vessel would serve the interest of justice.
17. Hence notice returnable on 15.04.2008.