{"id":112384,"date":"2011-02-09T00:00:00","date_gmt":"2011-02-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/link-vs-the-on-9-february-2011"},"modified":"2017-05-25T07:23:54","modified_gmt":"2017-05-25T01:53:54","slug":"link-vs-the-on-9-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/link-vs-the-on-9-february-2011","title":{"rendered":"Link vs The on 9 February, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Link vs The on 9 February, 2011<\/div>\n
Author: Jayant Patel,&Nbsp;Honourable J.C.Upadhyaya,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nOJA\/2\/2010\t 29\/ 29\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nO.J.APPEAL\nNo. 2 of 2010\n \n\nIn\n\n\n \n\nADMIRALITY\nSUIT No. 20 of 2009\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 11 of 2010\n \n\nIn\nO.J.APPEAL No. 2 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE JAYANT PATEL\n \n\n \n\n\n \n\n\t\t\tAnd\n\n\n \n\n  \nHONOURABLE\nMR.JUSTICE J.C.UPADHYAYA\n \n=========================================================\n<\/pre>\n
1<\/span><\/p>\n
Whether
\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n<\/p>\n
2<\/span><\/p>\n
To be
\n\t\t\treferred to the Reporter or not ?\n<\/p>\n
3<\/span><\/p>\n
Whether
\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n<\/p>\n
4<\/span><\/p>\n
Whether
\n\t\t\tthis case involves a substantial question of law as to the
\n\t\t\tinterpretation of the constitution of India, 1950 or any order
\n\t\t\tmade thereunder ?\n<\/p>\n
5<\/span><\/p>\n
Whether
\n\t\t\tit is to be circulated to the civil judge ?\n<\/p>\n
=========================================================<\/p>\n
LINK
\nOIL TRADING LTD – Appellant(s)<\/p>\n
Versus<\/p>\n
M
\nV ST.PETER (FORMELY KNOWN AS ST.LUKE) – Opponent(s)<\/p>\n
=========================================================<\/p>\n
Appearance
\n:\n<\/p>\n
MR
\nSN SOPARKAR, SR. COUNSEL with MS PAURAMI B SHETH
\nfor
\nAppellant,
\nMR ASHWIN SHANKET with MR DHAVAL M BAROT for
\nOpponent(s) :\n<\/p>\n
1,
\n=========================================================<\/p>\n
CORAM
\n\t\t\t:\n<\/p>\n
HONOURABLE
\n\t\t\tMR.JUSTICE JAYANT PATEL<\/p>\n
and<\/p>\n
HONOURABLE
\n\t\t\tMR.JUSTICE J.C.UPADHYAYA<\/p>\n
Date
\n: 09\/02\/2011 <\/p>\n
CAV
\nCOMMON ORDER :\n<\/p>\n
(Per
\n: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)<\/p>\n
1.\tThe
\nchallenge in this appeal is to the order dated 15\/1\/2010 rendered by
\nthe Ld. Single Judge of this Court in Admiralty Suit No. 20\/2009,
\nwhereby the interim order of arrest of the respondent – vessel
\n“M.V. ST. PETER”\n<\/p>\n
passed on 30\/12\/2009 came to be vacated and the Port officer and
\nCustoms Officer at Kandla Port were directed to release the
\nrespondent – vessel from the order of arrest and the warrant of
\narrest was ordered to be cancelled.\n<\/p>\n
2.\t\tThe
\nappellant, who is original plaintiff, preferred Admiralty Suit NO.
\n20\/2009 to secure claim amounting to US $ 4,34,602.43 with further
\ninterest at the contractual rate of 36% p.a., on the sum of  US $
\n2,68,935.39 from the date of the filing of the suit till the date of
\npayment\/realization. The Admiralty Suit was preferred in this Court
\non 12\/10\/2009. Incidentally,
\nthe defendant – vessel came to be arrested in another Admiralty
\nSuit No. 19\/2009 between the same parties vide order dated 27\/11\/2009
\nand, therefore, on 10\/12\/2009 when the instant Admiralty Suit bearing
\nAdmiralty Suit No. 20\/2009 came to be filed before this Court, it was
\nordered that it was not necessary to pass any separate order of
\narrest since the arrest order of the defendant ship had already been
\npassed in Admiralty Suit No. 19\/2009. However, in the instant suit
\nbearing  Admiralty Suit No. 20\/2009 vide order dated 30\/12\/2009, this
\nCourt passed an order of arrest of the defendant – vessel.\n<\/p>\n
3.\t\tAfter the
\ninstitution of the instant  Admiralty Suit, the respondent –
\ndefendant filed reply affidavit on 30\/12\/2009 and in the reply
\naffidavit, the principal contention raised by the defendant was
\nregarding suppression of material facts in connection with one
\nearlier suit instituted at New York on the identical cause of action
\nas well as regarding part payment having been made.  Pursuant to such
\ncontention by the defendant in affidavit-in-reply, the plaintiff
\nrequested for amendment of plaint and the amendment was allowed,
\nwherein the plaintiff admitted about institution of earlier suit
\npertaining to the same cause of action instituted at New York, but it
\nwas explained that the said suit had already been withdrawn before
\nthe instant Admiralty Suit came to be filed before this Court.
\nRegarding receipt of part payment, by way of amendment in the plaint,
\nit was explained that on account of series of transactions between
\nthe plaintiff and the defendant through including Belarussian
\nShipping Company [for short ‘BSC’] and FEDCOM for supply of bunkers,
\nit had skipped from the mind of the plaintiff regarding receipt of
\npayment to the extent of US $ 1,68,935.39. Resultantly, the claim
\namount of US $ 4,34,602.43 came to be reduced to US $ 1,72,196.67,
\nwith further interest at the contractual rate of 36% p.a., on the sum
\nof US $ 1,00,000 from 9\/12\/2009 till payment \/ realization.\n<\/p>\n
4.\t\tAfter
\nconsidering the materials on record and the submissions advanced on
\nbehalf of both the sides, the Ld. Single Judge, vide impugned oral
\norder dated 15\/1\/2010 vacated the arrest order of the defendant ship
\npassed on 30\/12\/2009 and directed the concerned Port Officer to
\nrelease the defendant ship from the order of arrest and the warrant
\nof arrest was ordered to be cancelled. Hence, the present appeal.\n<\/p>\n
5.\t\tMr.\n<\/p>\n
SN Soparkar, Ld. Sr. Counsel with Ms. PB Sheth, Ld. Advocate for the
\nappellant – plaintiff, at the out-set, submitted that there is
\nno dispute that at the time when the Admiralty Suit came to be
\ninstituted before this Court, the factum of earlier suit instituted
\nat New York on the same cause of action and the factum regarding the
\npart payment were not pleaded. However, it was submitted that the
\nmistake in not disclosing such facts cannot be termed as malafide,
\nbut it was bonafide mistake. The plaintiff was not going to gain any
\nundue advantage by not disclosing those facts initially in the
\nplaint. It is further submitted that as soon as the plaintiff came to
\nknow about the mistake, immediately amendment in the plaint was
\nrequested and the prayer for amendment was granted by the Ld. Single
\nJudge, whereby not only the plaintiff tendered reasonable
\nexplanations in not disclosing those facts in the plaint, but even
\ntendered unconditional apology for the same. Mr. Soparkar, Ld. Sr.
\ncounsel, therefore, submitted that on the one hand Ld. Single Judge
\npermitted the amendment in the plaint to be carried out and on the
\nother hand observed that the explanations tendered were
\nunsatisfactory.\n<\/p>\n
5.1.\t\tMr.\n<\/p>\n
Soparkar, Ld. Sr. counsel, asserted that the real test which the Ld.
\nSingle Judge should have adopted was to the effect that whether the
\nalleged suppression of facts were material facts so as to disentitle
\nthe plaintiff  from getting the equitable relief. It is submitted
\nthat in the instant case as soon as the plaintiff realized about the
\npart payment, he immediately reduced his claim. Any reduction in the
\nsuit claim cannot be viewed as malafide exercise. So far as the
\ninstitution of suit at New York was concerned, it was argued that
\nadmittedly said suit came to be withdrawn on 14\/11\/2008 and the
\ninstant Admiralty Suit came to be filed before this Court on
\n10\/12\/2009 and, therefore, the date on which the instant Admiralty
\nSuit was filed in this Court, New York suit was not pending, but it
\nwas already withdrawn.\n<\/p>\n
5.2.\t\tMr.\n<\/p>\n
Soparkar, Ld. Sr. counsel submitted that the plaintiff has a
\nprima-facie case and there is fair chance of success in the suit and
\nin such cases,  if the  arrest order of foreign vessel is not
\ncontinued  and if it leaves the shore of Indian territorial water, it
\nwould be difficult to get hold of it and virtually the plaintiff
\nwould remain remedyless. It is submitted that though by the impugned
\noral order  the Ld. Single Judge vacated the arrest order dated
\n30\/12\/2009 and permitted the defendant ship to leave the shore of
\nIndian territorial water, but in this appeal, vide order dated
\n28\/1\/2010 the defendant vessel was allowed to sail out  of the Indian
\nwater upon furnishing by the respondent – defendant –
\nvessel a security in the sum of Rs.80 lac. It is submitted that the
\nsecurity to the extent of Rs.80 lac has been furnished before the
\nRegistry pursuant to the order in this appeal dated 28\/1\/2010 and it
\nis, therefore, submitted that said order is required to be continued
\ntill the final disposal of the Admiralty Suit by allowing this
\nappeal.\n<\/p>\n
5.3.\t\tIn
\nsupport of the submissions, Mr. Soparkar, Ld. Sr. counsel, relied
\nupon the following decisions :\n<\/p>\n
S.J.S.\n<\/p>\n
\tBusiness Enterprises [P] Ltd. v\/s. State of Bihar reported in [2004]
\n\t7 SCC 166,<\/p>\n
Mayar
\n\t[H.K.] Ltd. v\/s. Owners and parties, vessel M.V. FORTUNE EXPRESS
\n\treported in [2006] 3 SCC 100,<\/p>\n
Arunima
\n\tBaruah v\/s. Union of India reported in [2007] 6 SCC 120 and <\/p>\n
Videsh
\n\tSanchar Nigam Ltd. v\/s. M.V. Kapitan KUD reported in [1996] 7 SCC\n<\/p>\n
\t127.<\/p>\n
6.\t\tPer
\ncontra, Mr. Ashwin Shanker, Ld. Advocate with Mr. DM Barot, Ld.
\nAdvocate for the respondent – defendant vehemently opposed this
\nappeal and supported the impugned order passed by the Ld. Single
\nJudge and submitted that  the Ld. Single Judge was perfectly
\njustified in coming to the conclusion that the appellant –
\nplaintiff was not entitled to any equitable relief on account of
\nsuppression of material facts. It was further submitted that in the
\nearlier suit filed by the plaintiff at New York neither the defendant
\nvessel M.V. ST PETER nor its present owner, namely PETER MARITIME CO.
\nINC.  were made parties in said suit though the subject matter and
\nthe cause of action in said suit was the identical. Said suit was
\nfiled against BSC and, therefore, as such there was no any
\ncontractual relationship between the plaintiff and the present owner
\nof the defendant ship. The present owner purchased the ship on
\n22\/12\/2008, whereas the suit transactions took place much earlier to
\nthat. However, it is submitted that apart from such factual aspects,
\nthe material thing is that the Ld. Single Judge, examining the
\nmaterials on record and considering the submissions of both the
\nsides, correctly held that the plaintiff was not entitled to any
\nequitable relief and, therefore, it is prayed that the appeal may be
\ndismissed.\n<\/p>\n
7.\t\tHaving
\nconsidered the submissions advanced on behalf of both the sides and
\nthe impugned order, so also the papers annexed with this appeal, it
\nis clear  that the Ld. Single Judge vacated the earlier order of
\narrest on the ground of suppression of material facts by the
\nplaintiff. There is also no dispute that before the amendment was
\ncarried out in the plaint, the factums regarding the part payment and
\n the previous suit filed at New York Court have not been pleaded in
\nthe plaint. There is also no dispute that the subject matter involved
\nin the previously instituted suit at New York and the subject matter
\nof instant Admiralty Suit, so also the cause of action in both the
\nsuits are identical. There is also no dispute that in the previous
\nsuit neither the defendant vessel nor the present owner of the vessel
\nwere made the parties though the previously instituted suit was filed
\nby the present plaintiff for the identical cause of action. There is
\nno dispute that in the reply affidavit filed on behalf of the
\ndefendant vessel in the suit, the defendant contended about the
\nsuppression of those facts in the plaint.  By virtue of the
\namendment, the plaintiff reduced the claim amount and tendered
\nexplanations for the mistake.\n<\/p>\n
8.\t\tAt
\npara. 8 in the impugned order, the Ld. Single Judge has reproduced
\nparas. 1.2 and 1.3 of the affidavit of the defendant, wherein  the
\ncontention regarding the suppression of material facts has been
\nraised by the defendant. Since in the impugned order the relevant
\nparas., from the affidavit of the defendant have been reproduced, we
\nneed not reproduce here in this order those paras., but suffice it to
\nsay that the defendant brought to the notice the previously
\ninstituted suit on the same cause of action filed by the plaintiff at
\nNew York and contended that the plaintiff considered BSC to be the
\nparty with whom it had a contract rather than these defendants. It is
\nfurther contended that the plaintiff had already been paid for the
\nsupplies [or atleast a substantial portion of fuel invoice]. It is
\nfurther contended that the defendants are innocent third party buyers
\nof the ship as the defendants purchased the ship on 22\/12\/2008
\nwithout notice of any such claim. It has been further contended that
\nthe plaintiffs do not have a maritime lien and hence cannot survive a
\nchange in ownership.\n<\/p>\n
8.1.\t\tTo
\nmeet with such contentions made by the defendants, the plaintiff had
\ncome out with the amendment application. At para. 9 in the impugned
\noral order, relevant paras. 2 and 3 of the amendment application have
\nbeen reproduced. We deem it fit to reproduce in this order   paras. 2
\nand 3, which run as under :-\n<\/p>\n
“2.\tThe
\nplaintiff states that the defendant filed and served copy of reply to
\nthe advocate of the plaintiff to oppose granting\/continuing arrest
\ncontending interalia that the plaintiff has filed suit in the New
\nYork Southern District  Court and also pointed out that the plaintiff
\nhas received part payment of USD 168935.39, a copy whereof has been
\nforwarded to the plaintiff by its Advocate.  The plaintiff has
\nregular business dealing with the defendants through them and their
\nagents.  While going through the copy of reply and upon looking at
\ntheir accounts and papers, the plaintiff realised that due to several
\ndealings with defendant through including Bealrusan and FEDCOM for
\nsupply of bunkers to more than half a dozen of various vessels at
\nvarious times, it has been skipped from its mind while giving urgent
\ninstructions to solicitors and their advocates about receipt of part
\npayment of USD 16935.39 with respect to invoice dated 27.2.2008 for a
\nsum of USD 938.39 since the vessel would have sailed on release of
\nearlier arrest.  As such the total outstanding of such supplies have
\nbeen more than USD 3.00 million which despite repeated assurances on
\nbehalf of the vessels \/ owners to the plaintiff, the same have yet
\nremained unpaid.  Thus in a rush to file proceedings before this
\nHon’ble Court and to obtain it the arrest could not point out tis
\nsolicitors and advocates about the payment received and to claim for
\nbalance amount only with interest for delayed payment thereon which
\nis its genuine, bonafide and unintentional mistake for which the
\nplaintiff unconditionally apologized to this Hon’ble Court.\n<\/p>\n
3.\tThe plaintiff
\nfurther states that as also pointed out the defendants to the
\nHon’ble Court of their submission on the proceedings at New York
\nCourt have been withdrawn.”\n<\/p>\n
9.\t\tThe
\nLd. Single Judge permitted above amendment to be carried out in the
\nplaint. Since the amendment was permitted, on behalf of the plaintiff
\nbefore the Ld. Single Judge, it was contended that granting of the
\namendment application permitting the plaintiff to amend the plaint
\nwould indicate that the Court had accepted the explanation tendered
\nby the plaintiff. The Ld. Single Judge was perfectly justified in
\nrejecting such submission for the simple reason that the procedural
\npermission does not mean acceptance of an explanation in relation to
\nsubstantive rights of litigating parties nor can be termed to get
\naway from the suppression if any found prior to interim relief on
\nequitable consideration. However, the moot question which is required
\nto be considered is as to whether the suppression of the facts can be
\nsaid to be material suppression of facts or not. In  S.J.S.
\nBusiness Enterprises [P] Ltd.’s case [supra] it has been held by
\nthe Hon’ble Apex Court that as a general rule, suppression of
\nmaterial fact by a litigant disqualifies such litigant from obtaining
\nany relief and that this rule has been evolved out of the need of the
\ncourts to deter a litigant from abusing the process of court by
\ndeceiving it.  It has been further held that the suppressed fact must
\nbe a material one in the sense that had it not been suppressed, it
\nwould have had an effect on the merits of the case. The said
\nprinciple was reiterated in  Arunima Baruah’s case [supra] and
\nin para. 12 in said decision Hon’ble the Apex Court observed as under
\n:-\n<\/p>\n
“12.\t\tIt is trite
\nlaw that so as to enable the court to refuse to exercise its
\ndiscretionary jurisdiction   suppression must be of material fact.
\nWhat would be a material fact, suppression whereof would disentitle
\nthe appellant to obtain a discretionary relief, would depend upon the
\nfacts and circumstances of each case. Material fact would mean
\nmaterial for the purpose of determination of the lis, the logical
\ncorollary whereof would be that whether the same was material for
\ngrant or denial of the relief. If the fact suppressed is not material
\nfor determination of the lis between the parties, the court may not
\nrefuse to exercise its discretionary jurisdiction. It is also trite
\nthat a person invoking the discretionary jurisdiction of the court
\ncannot be allowed to approach it with a pair of dirty hands. But even
\nif the said dirt is removed and the hands become clean, whether the
\nrelief would still be denied is the question.”\n<\/p>\n
10.\t\tIn
\nthe case of  Mayar [H.K.] Ltd. [supra] a plaint in Admiralty
\nSuit came to be rejected on the ground of suppression of facts.
\nExamining the facts and circumstances of said case, Hon’ble the Apex
\nCourt allowed the appeal and observed that such rejection is
\npermissible only if the suppressed fact is material, in the sense
\nthat had it not been suppressed  it would have had an effect on the
\nmerits of the case.\n<\/p>\n
11.\t\tIn
\nthe background of the principle established by Hon’ble the Apex Court
\nif the instant case is examined, in the first instance, it becomes
\nclear that about claiming higher amount initially in the plaint and
\nsubsequently when the defendant in the reply affidavit brought to the
\nnotice of the court about payment,  the plaintiff by way of amendment
\nreduced its claim, but about the said mistake  a vague and general
\nexplanation came to be tendered by the plaintiff stating that on
\naccount of several transactions, it has been skipped from its mind
\nwhile giving urgent instructions to Solicitors and Advocates. It has
\nbeen tried to explain that in a rush to file proceedings before this
\nCourt and to obtain order of arrest, the plaintiff could not point
\nout part payment in the plaint. About the suppression of factum
\nregarding previously instituted suit at New York is concerned, except
\nthe fact that the proceedings at New York had already been withdrawn,
\nno explanation was tendered as to why said facts were not initially
\npleaded in the plaint. There is no dispute that only after the
\ndefendant filed its reply affidavit and brought to the notice of the
\nCourt regarding the suppression of these facts, the plaintiff carried
\nout necessary amendment in the plaint. In the impugned order, the Ld.
\nSingle Judge elaborately dealt with this aspect of the matter and
\naccording to us, has rightly observed that there is no explanation as
\nto why the factum of instituting proceedings for the very same cause
\nof action viz. recovery of the very same principal amount, was not
\nforming part of the plaint before the amendment. The Ld. Single Judge
\n has also taken into consideration the fact that the previous suit
\nfiled at New York came to be withdrawn on 14\/11\/2008 and the present
\nAdmiralty Suit came to be instituted in this Court on 10\/12\/2009.
\nHowever, there is no dispute that the previous suit instituted at New
\nYork was pertaining to the very same  cause of action, but the said
\nsuit was filed against BSC and not either against the defendant
\nvessel or against the owners of the defendant vessel. It is further
\npertinent to note that this distinction is most relevant in the
\ncontext of the dispute raised on behalf of the defendant about
\nacquisition of ownership of the defendant vessel on 22\/12\/2008;
\nwhereas the cause of action of the suit transaction occurred much
\nprior to that. In the impugned order, therefore, the Ld. Single Judge
\nhas in the above background, rightly emphasized the fact that the
\nprevious suit instituted at New York was only against BSC and not
\neither against  the defendant vessel or the present owners of the
\ndefendant vessel. If the cause of action, in fact, was qua the
\ndefendant vessel or its present owners, then they would have been the
\ndefendants in said suit.\n<\/p>\n
12.\t\tAbout
\nthe withdrawal of the previously instituted suit, however, in the
\nimpugned order, the Ld. Single Judge observed that it is not
\nnecessary to go into the reasons for withdrawal as at this stage the
\nCourt is considering whether even if the aforesaid fact regarding
\ninstitution of previous suit and the withdrawal of the same, had
\nformed part of the plaint as originally presented, whether the
\nplaintiff was or was not entitled to ex-parte order of arrest of
\nvessel.  Apart from the fact as to whether the previously instituted
\nsuit was withdrawn reserving the liberty to file fresh suit on the
\nsame cause of action  or subject matter or not and if no such liberty
\nwas reserved, whether the plaintiff is precluded from instituting any
\nfresh suit in respect of such subject matter or not, the relevant
\naspect of the matter is that only after the defendant pointed out
\nabout the suppression, the plaintiff amended its plaint. Moreover, it
\nis pertinent to note that neither the defendant vessel nor the
\npresent owners of the defendant vessel were made party to that suit.\n<\/p>\n
13.\t\tIn
\nthe impugned order, the Ld. Single Judge has examined this aspect of
\nthe matter from one more angle as well. It has been observed that in
\nsuch an eventuality the Court has to further pose a question and
\nexamine   as to whether the plaintiff would suffer irreparable loss
\nif ex-parte ad-interim relief is not granted to the plaintiff at the
\npoint of time when the suit was taken up for hearing in the first
\ninstance. The Ld. Single Judge, replying this question in negative,
\nobserved that if the plaintiff had not suffered any irreparable
\ndamage for a period of more than one year, there is no question of
\nstating that in absence of any order of arrest of the vessel, the
\nplaintiff would suffer an irreparable loss, which could not be
\ncompensated in terms of money. It is pertinent to note that the
\nprevious suit instituted at New York Court came to be withdrawn on
\n14\/11\/2008 and after about more than one year on 10\/12\/2009 the
\ninstant Admiralty Suit came to be instituted in this Court and in
\nthat context, in the impugned order  it has been observed that if at
\nall the plaintiff was going to sustain irreparable loss, he would not
\nhave waited for more than one year. It has been submitted on behalf
\nof the appellant – plaintiff that the cause of action for this
\nsuit arose only when the defendant vessel came to be bearthed at
\nKandla Port within the Indian territorial water. This submission
\nwould have definitely carried effect if the previously instituted
\nsuit at New York was filed either against the defendant vessel or
\nagainst the present owners of the defendant vessel. In above view of
\nthe matter, we do not find any infirmity in the impugned order when
\nthe Ld. Single Judge examined  the suppression of material fact from
\nthe view point of irreparable injury.\n<\/p>\n
14.\t\tReliance
\nwas placed upon the case of  Videsh Sanchar Nigam  Ltd.
\n[supra], wherein in Admiralty  matter, considering peculiar facts and
\ncircumstances emerged in said case, the Apex Court allowed appeal and
\nset aside the order of Bombay High Court directing release of a
\ncommercial ship M\/s. M.V. Kapitan Kud. However, on the basis of
\nmaterials available on the record, Hon’ble the Apex Court came to the
\nconclusion that the damage to the cable wire of Videsh Sanchar Nigam
\nLtd., laid under the sea water of Indian territory came to be caused
\nby said vessel. There was no such defence regarding suppression of
\nmaterial fact in that case. Furthermore, the learned Senior Counsel
\nfor the appellant placed reliance upon the above referred decisions
\nof Hon’ble the Apex Court in the cases of S.J.S. Business Enterprises
\n(P) Ltd., Arunima Baruah, and Mayar (H.K.) Ltd. to substantiate the
\nsubmission that the suppression per se would not disentitle a
\nlitigant in claiming equitable relief of interim order, is ill
\nfounded in the facts and circumstances of the instant case as, in the
\ninstant case, the suppression was pertaining to material facts.  If
\nthe appellant-plaintiff had pleaded in the plaint at the time of very
\ninception of the Admirality Suit the material facts regarding filing
\nof the previous suit at New York on the same cause of action,
\nnon-joinder of the Suit vessel and its present owners in said suit,
\nwithdrawal of said suit before about more than one year to the
\ninstitution of the instant Admiralty Suit in this Court etc., the
\nCourt might not have passed ad interim order of arrest of the Suit
\nVessel.  These are such material facts which the Court  would have
\ngone into before the grant of ad-interim order. At the same time,
\nwhile considering the factors of urgency on the part of the
\nappellant-plaintiff in obtaining ad interim order as well as
\nsustaining irreparable loss in case immediate measures are not taken,
\nif the appellant-plaintiff had brought to the notice of this Court
\nabout filing of the instant Admiralty Suit after about more than one
\nyear from the withdrawal of the previous suit, the Court would have
\ndeclined to pass ad interim order against the respondent-defendant.
\nBesides, the power of the High Court under Article 226 of the
\nConstitution in case when alternative remedy is resorted to before
\nother forum would not stand at par with jurisdiction in Admiralty
\nSuit like Civil Suit, when earlier, for the same cause of action a
\nsuit was already filed and was withdrawn.  Under such circumstances,
\nas found by the learned Single Judge and as find by us, the
\nsuppression was so serious that it should disentitle the
\nappellant-plaintiff for equitable relief of interim order.  Thus the
\nfacts of the present case are totally different than the facts and
\ncircumstances in the cases before Hon’ble the Apex Court and
\nconsequently the decisions cited at bar would be of no help to the
\nappellant-plaintiff.\n<\/p>\n
15.\t\tIn
\nthe impugned order, therefore, the Ld. Single Judge came to the
\nconclusion that there was suppression of material facts. It has been
\nfurther observed that applying the test as to whether the plaintiff
\nwould be entitled to an order of arrest even if the said fact had
\nbeen originally incorporated in the plaint, the result would be that
\nthe plaintiff was not entitled to any equitable consideration. We,
\ntherefore, do not find that the Ld. Single Judge has exercised
\ndiscretionary powers either arbitrarily, capriciously, perversely or
\nagainst the settled principle of law. It is clear that in an appeal
\nagainst discretionary order, appellate Court shall not interfere even
\nif other view is possible, but considering the facts and
\ncircumstances of the instant case, so also considering the impugned
\norder passed by the Ld. Single Judge, we are of the considered
\nopinion that no other view is possible than the one taken by the Ld.
\nSingle Judge.\n<\/p>\n
16.\t\tIn
\nthe above view of the matter, the appeal lacks merits and does not
\nrequire to be admitted  but deserves dismissal. As observed above in
\nthis order, in this appeal interim injunction was prayed by
\npreferring Civil Application No. 11\/2010 and vide order dated
\n28\/1\/2010 in Civil Application No. 11\/2010, this Court directed the
\nRegistry to receive security in the sum of Rs.80 lac [Rupees eighty
\nlac only] furnished  by the respondent vessel and on deposit of the
\naforesaid sum of Rs.80 lac, the respondent vessel was allowed to sail
\nout of the Indian water. Pursuant to said order on behalf of the
\nrespondent vessel, Rs.80 lac came to be deposited before the
\nRegistry. Since the appeal lacks merits and is not admitted, Civil
\nApplication No. 11\/2010 does not survive and deserves dismissal.
\nTherefore, the respondent – defendant shall be at liberty to
\nwithdraw the deposited amount.\n<\/p>\n
17.\t\tFor
\nthe foregoing reasons, OJ Appeal No. 2\/2010 and OJ Civil Application
\nNo. 11\/2010  stand dismissed without any order as to costs.\n<\/p>\n
[
\nJAYANT PATEL, J. ]<\/p>\n
[
\nJ.C. UPADHYAYA, J.]<\/p>\n
Pansala.\n<\/p>\n
\t\t\t\t\t\t\t\t…..29…..\n<\/p>\n
\t\tAfter
\nthe pronouncement of the order, Mr. Soparkar, Ld. Sr. Counsel prays
\nthat the operation of this order be stayed for some time so as to
\nenable his client to approach before the higher forum. Such prayer is
\nopposed by Mr. Barot, Ld. Counsel for the respondent.\n<\/p>\n
\t\tAs such, the operation of
\nthe judgment does not deserve to be stayed. Considering the facts and
\ncircumstances, it is observed that the amount which is so deposited
\nshall be retained by the office for further period of four weeks from
\ntoday.\n<\/p>\n
[
\nJAYANT PATEL, J. ]<\/p>\n
\t[ J.C. UPADHYAYA, J.]<\/p>\n
* Pansala.\n<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Link vs The on 9 February, 2011 Author: Jayant Patel,&Nbsp;Honourable J.C.Upadhyaya,&Nbsp; Gujarat High Court Case Information System Print OJA\/2\/2010 29\/ 29 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD O.J.APPEAL No. 2 of 2010 In ADMIRALITY SUIT No. 20 of 2009 With CIVIL APPLICATION No. 11 of 2010 In O.J.APPEAL No. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-112384","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nLink vs The on 9 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/link-vs-the-on-9-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Link vs The on 9 February, 2011 - 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