JUDGMENT
R.S. Garg, J.
1. On 3.1.2006, the present Admiralty Suit has been filed by M/s. Laiki Bank (Hellas) S.A., Greece, a bank incorporated under the laws of Greece, having its head office at 16, Panepistimiou Str. 10672 Athens-Greece, against SM.V. Tonia V [formerly known as SM.V. Sea Symphony] a motor vessel alleged to be flying a flag of St. Vincent and Grenadines and further alleging that it is registered in foreign port, against M/s. Nautical Sky Inc., a Corporation organized and existing under the laws of the Republic of Liberia, having its registered office at 80, Broad Street, Monrovia, Liberia, on the following facts.
2. According to the plaintiff, in or around 2002 to 2003, the 2nd defendant-M/s. Nautical Sky Inc. was in need of funds, they accordingly approached the plaintiff for loan/advance/finance, the plaintiff agreed to advance and did advance to the defendant No. 2 loan/advance for a sum of US $ 2,500,000 (Two Million Five Hundred Thousand only). According to the plaintiff, terms and conditions governing the said loan/advance were recorded in the Loan Agreement dated 21st February, 2003. The said loan was disbursed on 24th February, 2003 and according to the plaintiff, such disbursement has been acknowledged by the 2nd defendant, on 24th February, 2003. The plaintiff says and submits that under the said Loan Agreement and/or first preferred mortgage, the loan was to be repaid in 16 equal consecutive quarterly installments and one balloon payment was payable together with the last installment including the interest. The 2nd defendant did not repay the loan on the due dates and defaults were accordingly committed. It is also submitted that in consideration of the said loan, the 2nd defendant executed in favour of the plaintiff, first preferred mortgage dated 26th February, 2003 of the vessel arrayed as defendant No. 1. The plaintiff submits that as part of the process of effecting the valid, substantial binding and enforceable mortgage on the 1st defendant vessel, Mr. Stefanos Vourakis, Attorney in fact, of the 2nd defendant appeared before the Consul of the St. Vincent and Grenadines, deposed and swore that he had executed the said Deed of Mortgage on behalf of the 2nd defendant pursuant to the authority granted to him by the Board of Directors of the 2nd defendant. The said fact was duly noted in the affidavit and Acknowledgment of Mortgage executed by and/or before the Consul of the St. Vincent and Grenadines at Piraeus. The plaintiff accepted the mortgage by executing a document of Acceptance of Mortgage. It is submitted by the plaintiff that the mortgage has been duly registered with the Registrar of Ships of the St. Vincent and Grenadines at its office in Piraeus on 26th February, 2003 itself. It is pleaded that the 2nd defendant was persistent in its defaults and did not make payment of the amount due, numerous meetings were held between the plaintiff and the 2nd defendant and correspondence was addressed by the plaintiff to the 2nd defendant. It is submitted that the action of the defendant led to cancellation of the insurance. The 1st defendant vessel is also mortgaged under second preferred mortgage in favour of one Agricultural Bank of Greece for an indebtedness in the sum of Euro 1.5 Million.
3. According to the plaintiff, all along it was informed by the 2nd defendant that the said 1st defendant vessel was trading between Sudan and Yemen, she would undergo special survey and she will eventually be employed by the Red Cross, pending attempts at raising funds for re-installing the P & I Club cover. According to the plaintiff, they later on learnt that the 1st defendant vessel was heading towards Alang (Indian territorial waters) for the purpose of demolition and/or sale and this action, on the part of the defendants, was in total breach of the Deed of Mortgage and Loan Agreement, which prohibited any sale, transfer or beaching of the 1st defendant. The plaintiff accordingly, addressed a notice dated 29th December, 2005, accepting the events of defaults and invoking their right under the Loan Agreement for early payment of the entire amount due under the Loan Agreement. The plaintiff says that the 2nd defendant, not standing with the said demand, refused and still refuses to pay the outstanding or any part of the loan. The plaintiff says and submits that as the 1st defendant is mortgaged with it for a sum of US $ 2,500,000/- only, the defendant No. 2 is not entitled to sell the property and the defendant No. 1 vessel deserves to be auctioned, sold and the sale proceeds deserve to be paid to the plaintiff. The plaintiff says and submits that this Court should exercise its Admiralty jurisdiction and in view of the real apprehension and imminent danger that the defendant No. 2 or any person claiming through or under them may try to create a third party interest in the defendant No. 1 vessel by transferring and/or otherwise by alienating, interim order of arrest deserves to be granted in favour of the plaintiff. It is submitted that the plaintiff’s rights are absolute and indefeasible, the plaintiff had maritime lien/claim over the defendant No. 1 vessel, therefore, balance of convenience is in favour of the plaintiff, ad-interim relief as prayed for be granted. They also prayed in the plaint that a Court Receiver of the High Court be appointed as Receiver of the defendant no 1 vessel under Order 40 Rule 1 of the Code of Civil Procedure including the power of sale with specific direction to obtain and deliver possession of the defendant No. 1 vessel to the plaintiff or their nominees without security or royalty, the 2nd defendant and any person or persons claiming through or under them be restrained by an order of injunction of this Court from selling, transferring encumbering or other wise alienating or creating any third party rights or interest in the 1st defendant vessel or entering into any agreement, they be restrained from beaching of the 1st defendant vessel, if the vessel is already beached by the time order is communicated, from seeking any demolition permission and/or if the permission is granted, from acting thereon in any manner, the defendants be restrained from acting in any manner that will prejudicially affect or hamper the plaintiff’s security in the 1st defendant. According to the plaintiff, their suit is valued in the sum of Rs. 8,61,72,069.15 ps., at the current prevailing exchange rate – on the date of the suit. Along with the plaintiff, various documents were filed, the suit was taken up for hearing on 3rd January, 2006 itself.
4. On one side, the plaintiffs were submitting that the vessel is likely to beach at Alang, therefore, injunction be granted, but at the same time, on 3rd January, 2006, Mr. S.N. Soparkar, learned Senior Counsel stated before the Court that the vessel was lying in the harbour of Alang Port. The effect, therefore, remains that on the date of the institution of the suit, the plaintiff knew and it was stated before the Court that the vessel had already beached the Port, despite this personal knowledge, no affidavit was filed before the Court stating correct fact nor any amendment was made in the suit nor any correction was carried out and till date, no correction to that effect has been made in the suit. This fact is being recorded by the Court, because, capital is sought to be made out of it by the Intervener M/s. Western Shipping Industry.
5. On 3.1.2006, this Court recorded the submissions made by Mr. S.N. Soparkar that a Court Commissioner be appointed to ascertain the factual position of the defendant No. 1 and for ascertaining that whether any permission is granted by the concerned authority for commencing demolition. The Court accordingly issued an order of arrest and requested the Registrar General of this Court to appoint an officer of this Court not below the rank of Deputy Registrar to act as Court Commissioner. The Court also directed that the Port Authorities and Customs Authorities of Alang Port be informed of the present order passed by the Court. The Court granted interim injunction in terms of para 28[D][i] of the plaint. The plaintiff accordingly informed the authorities, and the Court Commissioner in accordance with the authority conferred upon him submitted his report.
6. On 30th January, 2006, an application for vacating order of arrest with further permission for intervention was filed by M/s. Western Ship Breaking Industry, a partnership firm, claiming itself to be lawful owner of the vessel SM.V. Tonia V. It is submitted in the application that the plaintiffs have filed the suit on forged, concocted and manufactured facts, they purposefully suppressed the facts and despite having the fullest knowledge that the vessel had beached much before the institution of the suit, with concocted pleadings that it was likely to beach, filed the suit on 3rd January and by misleading the Court, obtained interim order of arrest. It is submitted that the affidavit in support of the plaint was sworn on 3rd January, 2006 with a submission that the vessel was headed towards Alang for the purpose of demolition and/or sale. It is submitted that on one side, in the affidavit, it is submitted that the vessel was heading towards Alang and on the very same day, it is submitted that the vessel had already beached. It is further submitted that the Intervener had purchased the said vessel from its erstwhile owner M/s. Export Trading Corporation Limited, Hong Kong. In support of this submission, they have filed various documents. It is also submitted that they have paid the entire consideration, that physical delivery of the said vessel was received by the Intervener on 14.12.2005, the applicant imported the vessel as Sgoods¬ for the purpose of ship breaking, filed Bill of Entry for home consumption dated 14.12.2005 and paid the entire customs duty to the Customs authority on 14.12.2005. The applicant also paid the required charges to the Gujarat Maritime Board. They also received permission for beaching vessel from Gujarat Maritime Board and the Customs authorities on 15.12.2005. It is submitted that the vessel was purchased solely for the purpose of demolition/breaking at Alang Ship Breaking Yard. It is the case of the Intervener that upon importing the vessel for home consumption and payment of customs duty, vessel ceased to be a vessel and was converted into Sgoods¬ and was no longer legally navigable. It is also submitted that the vessel, upon being beached at Plot No.80, at Alang Port, ceased to be physically navigable. According to them, after beaching of the vessel, Radio equipment was destroyed and rendered unuseful, small parts and equipments of the vessel were removed. Placing reliance upon the report of the Commissioner appointed by this Court, it is submitted that the Commissioner has found the following facts:
[a] The vessel is lying beached at Plot No.80 of the Applicant Firm;
[b] the middle portion of the vessel’s nose has been found to be cut;
[c] two big holes have been made in the middle of the left-hand front portion of the vessel;
[d] the system installed in Radio Room of the vessel has been dismantled by the Custom Department;
[e] as per norms of GPCB the stock of oil, Co2, fire fighting system with Cylinders have been removed from the vessel; and
[f] wings of six engines propellers have been dismantled.
The Intervener submits that the above act of demolition and removal of the articles from the said vessel made it physically unnavigable. It is also the case of the Intervener that the vessel is not liable to be arrested and on this ground alone, the order of arrest dated 3rd January, 2006 deserves to be vacated. The Intervener also submits that they are bona fide purchaser of value without notice and as such, they are entitled to approach this Court seeking vacation of the order. They have filed various documents to show that they are owners. Certificate of ownership, non-encumbrance issued by the Maritime Administration Bureau, DPR Korea has been submitted to show that the vessel was under no charge or encumbrance. Certificate of non-encumbrance issued by M/s. Export Trading Corporation Limited, Hong King, has been submitted to show that the vessel was available for sale, transfer or alienation. It is also submitted that the plaintiffs have approached the Court after suppressing the material facts and after misleading the Court, have obtained the order of arrest. It is also submitted that the plaintiffs have mislead the Court by making false averment that its claim runs as maritime lien, because, it is well-settled law that claim for mortgage does not run as maritime lien. According to them, maritime lien is the privileged claim which survives change of ownership even in the hands of a bona fide purchaser of value without notice. It is also submitted that because of the illegal arrest, the Intervener has suffered loss of Rs. 50,000/- per day.
7. The plaintiff filed their affidavit-in-reply, re-iterating the pleadings and grounds raised in the plaint with further submission that the Intervener knew about the first charge of the plaintiff, alleged certificate claimed to be issued by the Maritime Administration Bureau, DPR Korea is a forged document, plaintiff had not misguided the Court and on learning that the ship had already beached, they made correct submission before the Court that the vessel had already beached. It is also submitted that by some simple demolition, the ship does not become unnavigable, because, after carrying out minor repairs it can be made navigable and even if the Radio system is not available, the ship continues to be navigable. They also submitted that the defendant-ship is registered at St. Vincent and Grenadines Port and as the plaintiffs have the first charge over the property, they were justified in approaching this Court in its Admiralty jurisdiction. It is also submitted that the Intervener has failed to prove that it is a bona fide purchaser because the statements of the Intervener would show that it has not made proper search etc.
8. Learned counsel for the Intervener firstly submitted that as it has brought the vessel into the Indian territorial waters after paying customs duty and after paying full consideration to the erstwhile owners, it is entitled to appear in the present matter and pray for vacation of the arrest order. It is also submitted that they are entitled to take part in the proceedings and prove before the Court that the suit is bad, it is based on fraud and the Court has no jurisdiction and consequently, the suit deserves to be dismissed. It is submitted, during course of the arguments, that the Intervener being in possession of the property/vessel, if are deprived of the same, then, they are entitled to approach the Court and take part in the proceedings. Learned counsel for the plaintiff made a feeble attempt to oppose the intervention, but however, was unable to say that the Intervener cannot be joined.
9. Taking into consideration the totality of the circumstances and that the Intervener imported the vessel as Sgoods after paying customs duties in Indian territory and that if the other defendants do not take part in these proceedings, which they have not yet done, the matter is likely to go exparte which may adversely affect the rights of the Intervener and that as the Intervener has paid good sum to M/s. Export Trading Corporation Limited, I am of the opinion and order that the arrest is depriving the Intervener of its property, I am of the opinion that they deserve joinder as party. The said prayer is accordingly allowed.
10. Placing reliance upon the Single Bench judgment of the High Court of Bombay in its Admiralty and Vice Admiralty jurisdiction, in Notice of Motion No. 1302 of 2001 in Admiralty Suit No. 14 of 2001, decided on 28th June, 2001, it is submitted that if the vessel was imported in Indian territory as Sgoods¬ for home consumption after paying customs duty and the vessel is beached on the Port and demolition has taken place and the vessel has been made non-navigable, the vessel does not continue to be a ship or a vessel, but would become goods and in the maritime jurisdiction, the Court cannot issue an order of arrest. During course of the arguments, it was also submitted that the plaintiffs have played fraud, misled the Court and obtained order of arrest after suppressing material facts. It is also submitted that the vessel, if is non-navigable, then, it cannot be argued by the other side that it can be made navigable and it would continue to be a vessel. According to the Intervener, now party defendant, at the time of the order of arrest, a vessel should continue to be a ship and must be physically and legally navigable. It is further submitted that the Bombay High Court order dated 28th June, 2001 has been approved by a Division Bench of the Bombay High Court in Appeal(C) No. 635 of 2001 on 16th July, 2001. It is contended that the vessel not being a ship under the changed circumstances, could not be arrested and the interim order obtained by fraud deserves to be vacated.
11. In the above matter of Communications and Commerce International (Pvt.) Ltd. v. M.V. Saaba and Anr. the plaintiff came with a case that Saaba Shipping Company had entered into an agreement with the plaintiff, namely, Communications and Commerce International (Pvt.) Ltd., whereunder, the plaintiffs were appointed as Managers of the defendant No. 1. They were entrusted with several jobs in relation to the vessel and in pursuance to the management agreement, the said plaintiffs managed the said vessel and for that purpose, incurred various financial liabilities. They pleaded that owners did not make payment, therefore, they were required to file the suit. Pleadings in that case were that the plaintiffs learnt that the owners of the vessel disengaged the management of the plaintiff and in view of the said facts, the plaintiffs requested for finalization of the accounts. It was pleaded in the said suit that they have maritime claim/lien/statutory right of action. They also pleaded that the vessel was scheduled to be beached on 19th May, 2001 for demolition. The Court granted ad-interim order. Thereafter, the defendants appeared in the matter and submitted to the Court that they had made payment of consideration to the erstwhile owners of the defendants, they had received possession of the property, they had paid necessary customs duty to the Customs Department, because, the vessel was imported into India for the purpose of demolition. Various other pleadings were also raised. After hearing the arguments of the parties, the Court observed that on the date of drafting of the plaint, the plaintiffs knew that the defendant No. 1 vessel was lying at the Port and harboured at Mumbai. The Court also found that the vessel had beached on 19th May, 2001, the Court assumed that the plaintiffs were aware of the purpose for which the vessel was brought to Mumbai. The Court also found that the vessel was imported into India for the purpose of demolition, it was held liable for payment of customs duty and as such, had become goods, which was being imported. The Court also found that it would be difficult to believe that the plaintiff who knew even the exact date on which the vessel was to be beached for demolition, would not, on inquiry, find out the purpose for which the vessel was imported. The Court also observed that the Admiralty Act does not define the word ship, the Court observed that so far as the meaning of the term Sship¬ is concerned, the Court will have to go back to the meaning attached to the term in common parlance. The dictionary meaning of the term Sship¬ is Svessel employed in navigation and as such, navigability of the vessel is dominant factor in deciding whether it is a ship or not. The Court accordingly held that the the vessel, where it was brought to the Port for demolition for home consumption, would not be a ship/vessel, but were goods, firstly because, intention was not to navigate and secondly, customs duty was required to be paid. The learned Single Judge, accordingly rejected the application for vacation. The appeal against the said order did not prove fruitful and the order of the learned Single Judge was approved by the Division Bench.
12. Learned counsel for the original plaintiff vehemently contended that despite beaching on the sea-port, the vessel continues to be a vessel and despite demolition of the Radio system and occurrence of holes etc., the vessel cannot be said to be non-navigable. It is submitted that after small repairs, the vessel can again land in water. It is further submitted that due to some mistake or so, the plaintiff pleaded that they have a maritime lien/claim, in fact, they have first charge over the property/vessel. Placing reliance upon the number of the judgments of Indian and American Courts, it is submitted that the mortgage charge is at par with the maritime lien/claim and this Court would have jurisdiction. It is further submitted that there was no reason for the plaintiff to make false statement in the Court and they were justified in their submission that the vessel was headed towards Alang Port and immediately after they learnt the fact that the vessel has beached, they made the said submission before the Court.
13. Learned counsel for the Intervener submits that the facts of the present case are identical to the facts of the case, which were before the Bombay High Court. It is submitted that even in the present matter, the ship beached the Port on 16.12.2005, which is clear from the certificate issued by the Gujarat Maritime Board, the plaintiff knew about its beaching, they also knew about the payment made to the Customs Department and despite having fullest knowledge of the facts, made false statements in the plaint. It is submitted that if on 3rd January, 2006, affidavit was sworn and on the very same day in the Court it was submitted that the ship has already beached, then, they are obliged to inform the Court as to when they received the information. It is submitted that a person who plays fraud with the authority of the Court does not deserve an order in equity.
14. Learned counsel for the plaintiff, however, submitted that the plaint was drafted earlier, though, affidavit was sworn on 3rd January, 2006, but immediately after learning about the beaching of the vessel, the fact was informed to the Court. It is also submitted that the certificate alleged to be issued by the Maritime Administration Bureau, DPR Korea is false document and the said certificate is under inquiry. It is also submitted that the plaintiff’s claim may not be a maritime claim or lien, but it would stand equal to a maritime claim. It is submitted that the Intervener did not make payment to the erstwhile owners and is trying to play fraud with the Court. Placing reliance upon number of judgments, it is submitted that if the vessel can be made navigable after some repairs or installation of certain machinery/articles, then, it would retain its character of a vessel. Confronted with the judgment of the Bombay High Court, it was submitted that the Division Bench of the Bombay High Court proceeded on wrong premise and made wrong observations by holding that the vessel became goods by payment of the customs duty, it is submitted that the order of arrest deserves to be continued and can be vacated only on submission of bank guarantee to the satisfaction of the plaintiff’s claim.
15. I have heard the parties at length.
16. In the matter of Epoch Enterrepots v. M.V. Won Fu, ,the Apex Court has observed as under:
16. In M.V. Al Quamar (supra) this Court spoke of two attributes of maritime lien as noticed hereinbefore. The International Convention for Unification of Certain Rules relating to Maritime Lines and Mortgages at Brussels in 1967 defined the maritime line to be as below:
a. wages and other sums due to the master, officers and other members of the vessel’s complement in respect of their employment on the vessel;
b. port, canal and other waterways and pilotage dues;
c. claims against the owner in respect of loss of life or personal injury occurring, whether on land or no water. In direct connection with the operation of the vessel;
d. claims against the owner based on tort and not capable of being based on contract, in respect of loss of or damage to property occurring, whether on land or no water in direct connection with the operation of the vessel;
e. claims for salvage, wreck removal and contribution in general average.
It would be clear from the judgment of Apex Court that charge of mortgage is not a maritime line/claim. In my opinion, the said charge even would not stand at par with the maritime claim or lien.
17. An order of arrest is akin to an order of injunction. An injunction can be granted to a party if it shows prima facie case, convinces the Court that balance of convenience is in favour of the party and if injunction prayed for is not granted, then, the plaintiff would suffer irreparable injury, which cannot be compensated in terms of money. Over and above these principles, the Court would also have to see that whether on the facts and in the circumstances of the case and looking to the conduct of the party, injunction deserves to be granted or not. Injunction is a relief in equity and while granting injunction, Court has to place itself in place of the plaintiff for grant of injunction and in place of the defendant for vacating the same. The Court simply cannot grant or reject injunction for the sake of argument. The Court is obliged to consider pros and cons, conduct of the parties and injury likely to be caused by refusal or by grant of the injunction.
18. In case of a maritime claim/lien, law is plain and simple. Almost every High Court in its Admiralty and Vice Admiralty jurisdiction are issuing orders of arrest, if facts projected by the plaintiff prima facie convince the Court that the case on hands is fit one for grant of order of arrest. It is also not unknown to our judicial system that orders of arrest can be vacated by the Court if it is found that the order of arrest has been obtained by playing fraud by foul game or by suppressing the material facts.
19. In a case, where the plaintiff does not come with clean hands before the Court, the Court can refuse interim relief. In a case where, plaintiff convinces the Court that it has done everything which it could do, and has not played any fraud, then, the Court, obviously would grant order of arrest and after hearing both the sides, would always confirm it. The question to be answered would always depend on the facts of the case.
20. In the present case, suit was filed on 3rd January, 2006. It is submitted in the plaint that the plaintiff has maritime claimlien. During course of the arguments, it was not disputed that charge of mortgage would not come within the purview of maritime claim or lien. That was the first misstatement made in the plaint. The plaintiffs persuaded the Court by stating that they have indefeasible right as their claim is maritime claim/lien. If such was not a submission before the Court, there was no likelihood for grant of injunction. In para-20, a submission was made that on 29th December, 2005, the plaintiff was informed by Mr. K.V. Venu that the vessel was at Virgo, Suez and thereafter, the plaintiff learnt that the 1st defendant vessel was headed towards Alang for the purpose of demolition and/or sale. The plaintiffs purposefully did not mention that on what particular date, they learnt that the vessel was heading towards Alang for the purpose of demolition. In any case, it will have to be taken as a fraud played by the plaintiff that up to 3rd January, 2006, when affidavit was sworn, Mr. K.V. Venu, constituted Attorney of the plaintiff (person who has sworn the affidavit) did not know that the vessel had already beached. In para-3 of the affidavit, it is submitted that the 1st defendant vessel has arrived within the territorial waters of India on/around 2.1.2006 and on the said date, it was anchored at the Port of Alang. It was also submitted in the affidavit that the vessel was likely to be sold and/or beached at Alang Ship Yard. If this was the statement on 3rd January, 2006 when the affidavit was sworn, within few hours of filing of the plaint, at the time when the case was being argued, the plaintiff had ready information that the ship had already beached. This is too tall a claim of the plaintiff that they did not know as to when the ship had beached. This was, yet another misstatement of the plaintiff. What action is to be taken against Mr. K.V. Venu, constituted Attorney of the plaintiff for swearing a false affidavit will have to be decided by the Court at a later stage, but I will be justified in observing that the plaintiff played fraud with the Court firstly, by saying that they had a maritime claim and secondly, by pleading that the ship was likely to be beached for demolition. Conduct of the plaintiff clearly shows that they were in know of the facts, the plaint was artistically drafted and the plaintiff could successfully obtain an order from this Court.
21. The question for consideration, still would be that after partial demolition of the ship, can the same be held to be navigable? In my considered opinion, report of the Commissioner makes it clear that the ship, as on today, is no more navigable. The argument of the learned Counsel for the plaintiff that even if the wrecks of a ship are repaired, it can be made navigable, then, the wrecks would be taken to be a ship or a vessel, is too tall an argument. Navigability is the first requirement for a ship. If an article as it is, cannot be navigated in the deep waters, then, such article cannot be called a ship or a vessel fit for navigation. Because of the demolition of a ship into small pieces, there does not exist a ship or a vessel, the argument of the learned Counsel for the plaintiff is applied, there would be chaotic results. Debris and small pieces cannot be said to be a ship or a vessel. In the modern times, Radio equipments are must. In the present matter, the Radio equipment has already been demolished. It is also to be seen that the vessel is lying beached on Plot No. 80 of the applicant-firm. It has not been beached for repairs or allied purpose, but it has been imported into Indian territory as goods for home consumption after payment of the customs duty. The intention of the importer would be material and would be decisive to some extent. It is undisputed that middle portion of the vessel’s nose has been found to be cut. Cuting of the middle portion of the vessel’s nose would make it clear that the vessel is not to be re-used, but the same is to be consumed as goods.
22. Two big holes have been made in the middle of the left hand front portion of the vessel. Unless these big holes are repaired and closed, an article cannot be called a ship. The system installed in Radio Room of the vessel has been dismantled by the Customs authorities. Carbon Dioxide and fire fighting system have already been removed. These were the small changes, but dismantling of wings of six engines propellers would clinch the issue. If the propellers have already been dismantled, the article cannot be used as a vessel nor it can be said that the article continues to be a vessel. Though number of the arguments have been raised by learned Counsel for the plaintiff in support of the arrest and to contend that the wrecks of the vessel continue to be a ship, but I will not agree with the same and would prefer to observe the judgment in the matter of Communications Commerce International Pvt. Ltd.
23. The dictionary meaning of ship is vessel employed in navigation. Navigability of a vessel is dominant factor in deciding whether it is a ship or not. Navigability of a vessel would not depend only on its mechanical navigability, but would also depend on its legal navigability. From the facts, it would clearly appear that that the Intervener declared their intention to authorities in India that they were importing goods in India and they wanted to discontinue its use as a ship for carrying cargo or passengers and they accordingly paid the customs duty on the vessel as goods, the owners became disentitled to navigate the vessel, and therefore, the vessel ceased to be a ship on its import after payment of the custom duty for its home consumption. I would respectfully agree with the observations made by the learned Single Judge in the above-referred matter that the moment, vessel was beached for the purpose of demolition or breaking up, it ceased to be a ship or a vessel.
24. One of the important argument raised by the learned Counsel for the plaintiff is that the Inverveners are relying upon a forged document. The defendants challenged the validity of the certificate issued by the Maritime Administration Board. The plaintiff thereafter obtained the original of the document and produced the same in the Court. The defendant again raised objection by saying that the alleged original is not the original of the photo state copy, which was earlier filed in the Court. There had been paltry changes in the photocopy. The plaintiffs filed an affidavit of the Port authority of Korea, wherein it is stated that the said copy is the original document and the original document produced in the Court is also original and genuine. I have gone through both the documents, that is, photocopy earlier filed with the plaint and the original filed later on. Though contents and matter of the two documents are similar, but placement of the words and addition of few words in one document would show that the photocopy earlier filed is not the photocopy of the alleged original document. Be that as it may. That would not make a difference, because, the Intervener, in my opinion, are the persons, who can be held to be owners of the property as they have absolute control over the property and are entitled to use it as they like it. Once they have possessory title, then, the question of its registration at one place or the other would lose its importance. The original owner, that is, the original defendant No. 2 has not come before the Court to say that they continue to be owners and the present Intervener has no right over the property. In any case, this question will have to be decided at the time of hearing of the matter.
25. After giving my due consideration to the facts, I hold that the plaintiff made purposeful misstatements in the plaint, they tried to mislead the Court and obtained injunction order by making wrong and fraudulent pleadings in the Court. I also hold that the plaintiff does not have a prima facie case and balance of convenience is also not in favour of the plaintiff.
26. Irreparable injury would be occasioned to the Intervener, a person who has brought the property into Indian territories after making full payment through bank to the erstwhile owner and on payment of customs duty. If arrest of vessel is allowed to be continued, it would virtually satisfy the game played by the plaintiffs. There is no equity in favour of the plaintiffs.
27. For the reasons aforesaid, interim order granted on 3.1.2006 deserves to and is accordingly vacated. On production of copy of this order, the concerned authorities may proceed with the matter in accordance with law. Civil Application is allowed. The Intervener shall be entitled to costs of Rs. 10,000/- (Rupees Ten Thousand only) payable by the plaintiff.
FURTHER ORDER
Order pronounced in the open Court.
Mr. A.S. Vakil, learned Counsel for the original plaintiff submits that the effect and operation of the order passed today be stayed for some time enabling the original plaintiff to approach the Higher Forum.
In view of the findings recorded by me, I do not think that the order passed today deserves to be stayed. The prayer is rejected. Direct service of the order is allowed.