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OJA/153/2008 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
O.J.APPEAL
No. 153 of 2008
In
ADMIRALITY
SUIT No. 8 of 2008
With
CIVIL
APPLICATION NO.291 OF 2008
=====================================================
JAISU
SHIPPING COMPANY PVT LTD - Appellant(s)
Versus
M/T
ORIENTAL MARGUERITE & 1 - Opponent(s)
=====================================================
Appearance :
Mr.D.D.Vyas,senior
advocate with Mr.V.Subramanian with MR DEEP D
VYAS for Appellant
Mr.Prashant S.Pratap,advocate with Mr.Apurva
S.Vakil for the
respondents.
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 17/10/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE D.A.MEHTA)
1. This
appeal has been preferred against interlocutory order dated
15-10-2008 made by the learned single Judge in Admirality Suit No.8
of 2008 whereby the respondents, namely, respondent No.1, who is the
original defendant-Vessel, has been directed to be released from
arrest on furnishing security of Rs.10 crores by the defendants.
2. The
appellant herein, the original plaintiff has preferred Admirality
Suit No.8 of 2008 for a decree against the defendants for a sum of
Rs.36,05,42,000/- and/or any larger amount with interest at the rate
of 12% per annum from the date of suit. The suit is based on an
accident stated to have occurred at around 3.30 hours on 8-10-2008
between dredger ship, named, Kamal XXIX owned by the plaintiff and
defendant No.1-vessel. On 10-10-2008 when the suit came up for
hearing for the first time, learned single Judge made an order for
arrest of defendant No.1-Vessel and also directed the defendants to
furnish security to the tune of Rs.5 crores, which was liable to be
increased, after hearing the defendants in satisfaction of the claim
of the plaintiff in the suit. Simultaneously, while issuing notice
returnable on 13-10-2008 the plaintiff was directed to furnish bank
guarantee of Rs.15 lacs towards security.
3. On
13-10-2008 defendants put in appearance through Mr.A.S.Vakil as noted
by the Court and prayed for time. The matter thus stood adjourned to
15-10-2008. On the said date, namely, 15-10-2008 the plaintiff came
forward with an application for amendment of the plaint as well an
application for production of additional evidence.
4. After
considering the application for amendment, application for production
of additional evidence and the additional evidence accompanying the
said application, learned single Judge passed the following order:
the
Court is of the view that the amount of security of Rs.5 crores,
ordered to be furnished by the Defendant Vessel, be enhanced to
Rs.10 crores, subject to keeping all rights of the parties open,
including the right of the Defendant Vessel to challenge the
application for amendment as well as application for production of
additional evidence or prayer for enahancement of security amount.
It is, therefore, ordered that on furnishing the security of Rs.10
crores, the Defendant Vessel be released from the arrest.
At
the same time court has recorded that detailed submissions made by
the counsel for the defendants have not been considered in absence of
any written statement or reply filed by the defendants. The Court has
kept open respective rights of the parties,as noted in the order.
5. At
the time of hearing of the appeal, learned senior advocate appearing
for the appellant-original plaintiff submitted that learned single
Judge had erred in passing the impugned order dated 15-10-2008
ordering release of the vessel even before the claim of the plaintiff
was finally adjudicated, that in fact, according to the learned
advocate, the plaintiff had a right to seek further enhancement of
its claim and hence the release of Vessel was bad in law. That in the
event the plaintiff succeeded, the plaintiff would not be in a
position to enjoy the fruits of such success after the foreign vessel
has left Indian shores and the security that has been directed to be
offered is extremely on the lower side, considering the total amount
claimed by the plaintiff. In support of the submissions made,
reliance has been placed om the following three decisions of the Apex
Court:
(a) M.V.Elisabeth
v. Harwan Investment and Trading Pvt.Ltd., 1993 Supp (2) SCC 433
(b) Luga
Bay Shipping Corpn. v. Board of Trustees,Port of Cochin, AIR 1997 SC
544
(c) Videsh
Sanchar Nigam Ltd. v. M.V.Kapitan Kud,AIR 1996 SC 516.
Reliance
has also been placed on relevant extracts relating to damages from
Marsden on Collisions at Sea,12th Edition. The learned
advocate also placed for perusal a joint inspection report dated
15-10-2008 to submit that in light of the said report the claim of
plaintiff was substantiated and hence the defendant-vessel had
wrongly been directed to be released.
6. Learned
advocate appearing for the defendants have also been heard though no
appearance has been filed. According to the learned advocate for the
defendants, the impugned order made by the learned single Judge was
not only reasonable but the only order that could have been made in
the facts and circumstances of the case. That the said order has
taken care of interests of the plaintiff and the plaintiff cannot
have any grievance.
7. Insofar
as the joint inspection report dated 15-10-2008 is concerned, suffice
it to state that the same was not placed before the learned single
Judge. The Court has not thought it fit to consider the same. It will
be open to the plaintiff to place the same before the learned single
Judge in accordance with law.
8. Having
heard the respective submissions and after considering the impugned
order dated 15-10-2008, the court does not find any reason to
interfere. The Court while hearing a plaintiff in an Admirality Suit
in exercise of its discretion may order arrest of a vessel in
satisfaction of the decree that may be passed subject to the point of
time when the defendant puts in appearance. Thereafter, the court in
exercise of its discretion may direct release of the vessel by
putting the defendant to terms. As to what would be the quantum of
damages is within the exclusive domain of the court and after
considering the evidence that may be produced by the plaintiff, and
as countered by the defendant, the court in exercise of its judicial
wisdom may peg the claim of the plaintiff at a figure lower than the
claim made for the purposes of directing the defendants to furnish a
security, or the court may order the defendants to furnish security
for the entire amount of claim. But such an exercise will be
dependent upon the facts and circumstances of each case and, there
cannot be any straight-jacket formula.
9. In
the circumstances of the case, if the court initially pegged the
amount of claim at a figure of Rs.5 crores for the purposes of
furnishing security by the defendant and later increased the same to
the figure of Rs.10 crores while directing release of the vessel, it
cannot be stated that the impugned order surfers from any legal
infirmity so as to warrant interference.
10. Under
the circumstances, considering the fact that the impugned order is
an interlocutory order, and the matter is to be heard by the learned
single Judge, on the application for additional evidence, on the
application for amendment, the appeal is not required to be
entertained. Any expression of prima facie opinion in the foregoing
paragraphs will not come in the way of either side in canvassing
their respective stands before the learned single Judge nor will
such an expression hamper the learned single Judge in deciding the
matter, in light of the settled position of law and in the
circumstances of the case.
11. The
appeal is accordingly dismissed.
CIVIL
APPLICATION NO.291 OF 2008
In
light of the order made in appeal, this civil application has been
rendered infructuous and is rejected accordingly.
(D.A.Mehta,J)
(Smt.Abhilasha Kumari,J)
arg
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