SUJIT KUMAR SINHA, J. ( 1 ) THIS motion by the JSC SEVRYBA ("the petitioner" for short) is inter alia for dismissal of this suit and for vacation of the order of arrest dated 17th october, 1997 and the consequential orders respectively dated 20th October, 1997 and 23rd October, 1997. By the said order of arrest the vessel "m. T. Stakhanovets" ("the said ship" for short) has been arrested. ( 2 ) THE motion is opposed by the plaintiff and supported by the intervener the Russian federation ( 3 ) IT is necessary to set out briefly the facts leading to the present proceedings. ( 4 ) THE petitioner is a "state undertaking" of the Government of the Russian Federation. It is the case of the petitioner that the said ship is the property of the said foreign State. ( 5 ) THE plaintiff is the owner of the vessel "pkr Board No. 108 Moskva - Class Helicopter cruiser" ("the said Tow" for shor ). The said tow belonged to the Russian Navy prior to its purchase by the plaintiff. The said Tow was to be brought to this country for being broken up as scrap. ( 6 ) BY an agreement dated 20th April, 1997 entered into by and between the plaintiff and the charterer of the said ship the "international Towing service Inc. ", the said charterer agreed to towage of the said Tow from the port of Scevastopol, Ukraine to the port of Alang in the State of Gujarat by the said ship and there deliver the said Tow to the plaintiff in good order and condition. The Bill of lading for the towage of the said Tow was also signed on behalf of the said charterer and made over to the plaintiff as the shipper and the consignee of the same. The copies of the said contract and Bill of Lading are annexures to the plaint. ( 7 ) IT is the case of the plaintiff that it had upto the date of Institution of this suit suffered loss and damage in the sum of US Dollars 409, 509 by reason of the breach by the said charterer of its contract of towage of the said Tow as well as the negligence on the part of the crew of the said ship and that the plaintiff is likely to suffer further loss and damage. Particulars of the breaches committed by the said charterer as well as of the negligence of the crew are set out in the plaint. ( 8 ) IT is not in dispute that the said ship at the material time was plying under a time charterparty agreement entered into by and between the said charterer and the petitioner. It is not the case of the petitioner that its said time charterparty agreement has expired, A copy of the said time charterparty agreement is an annexure to the petition. ( 9 ) IT is further not in dispute that the said ship at the time of its arrest was employed in a commercial venture. ( 10 ) ONE further fact which is relevant is that the said ship was arrested and brought down to the port of Mumbai and it is since then anchored there. ( 11 ) IT is convenient at this stage to refer to the orders passed by this court in its Admiralty jurisdiction on the interlocutory application of the plaintiff in this suit. The first in sequence is the order of arrest of the said ship dated 17th October, 1997. The second order dated 20th October, 1997 is a direction on the coastguards to implement the said earlier order dated 17th October, 1997. The third order dated 23rd October, 1997 restrains the defendants and the crew members of the said ship form interfering with the passage of the said Tow to the Port of Alang. ( 12 ) THE aforesaid orders are still subsisting. ( 13 ) IT will be recalled tthat the said ship is still under a time charterparty agreement between the charterer and the petitioner. I have therefore doubts about the locus standi of the petitioner to maintain the present motion. To my mind, the right of the petitioner if at all can only arise after the expiration of the said agreement. However, the parties proceeded to argue their case on a different basis. ( 14 ) MR. Bachawat appearing on behalf of the petitioner rested his case on two grounds in support of the motion, namely:- (A) Section 86 of the Code of Civil procedure, 1908; (B) The territorial limits of the. Admiralty jurisdiction of this court. However, the parties proceeded to argue their case on a different basis. ( 14 ) MR. Bachawat appearing on behalf of the petitioner rested his case on two grounds in support of the motion, namely:- (A) Section 86 of the Code of Civil procedure, 1908; (B) The territorial limits of the. Admiralty jurisdiction of this court. With regard to the second ground it was urged that the Admiralty jurisdiction of this court does not extend to Mumbai and ihat in any event at the time of its arrest the ship was lying outside the territorial waters of this country and as such its arrest was illegal and invalid. ( 15 ) MR. R. P. Mitra appearing for the Russian Federation supported the case of the petitioner. ( 16 ) MR Sarkar appearing for the plaintiff disputed the aforesaid grounds. ( 17 ) I shall take up the aforesaid grounds seriatim as follows: (A) Section 86 of the Code of Civil Procedure, 1908. Section 86 (1) provides that: "no foreign state may be sued in any court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government. " ( 18 ) THE said provision with regard to sovereign immunity has been held by the Supreme court to be mandatroy and to apply even to a company owned by a foreign State. See the case of "v. D. S. Rostock (DSP Lines), Dept. of G. D. R. v. N. C. Jute Mills Co. Ltd". However, this case related to a civil suit filed by the respondent/plaintiff against the appellant/defendant. ( 19 ) HOWEVER, it is necessary to refer to the provisions of Section 112 (1) of the Code of Civil Procedure, 1908 which provides:"nothing contained in this Code shall be deemed:- (a) ". . . . . . . . . . . . . . " (b) ". . . . . . . . . . . . . . " section 112 (2) provides: "nothing herein contained applies to any matter of criminal or Admiralty or vice-admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts. " ( 20 ) IT was argued that as the said Section 112 occurs in Part. VII under the heading "appeals" in the Civil Procedure Code, therefore, the same has a limited application. " ( 20 ) IT was argued that as the said Section 112 occurs in Part. VII under the heading "appeals" in the Civil Procedure Code, therefore, the same has a limited application. ( 21 ) I am not impressed by the said argument. The expression "herein" in sub-section (2) obviously refers to "this Code" in sub-section. (1) and therefore the said sub section (2)takes within its sweep the provisions of the code including Section 86. ( 22 ) FURTHER reliance was sought to be placed on a Division Bench judgment of this court in thecase of "in the matter of the ship, champion". In that case the Division Bench had no occasion to advert to the corresponding provisions in the 1877 Code as the expression occurring there was "chapter" unlike the expression "code" the present Code. ( 23 ) IN support of his submission that the provisions of Section 86 of the Code of Civil procedure do not apply to Admiralty suits Mr. Sarkar relied upon the aforesaid provisions of section 112 (2) as well as on (i) the unreported judgment of Shyamal Kumar Sen, J. "in re m. V. Nickie". In that case the learned Judge relied upon the aforesaid provisions of Section 112 (2) to hold that no security for costs could be ordered against a foreign plaintiff in an Admiralty suit; (ii) the unreported judgment of the Division Bench in the case of "state of ukraine and Anr. v. Eittrarius Limited"; In that case the Division Bench held that the provisions of Section 86 do not apply to Admiralty suits; and (ii) the decision of the Supreme Court in the case of the Videsh Sancharnigam Ltd. v. M. V. Kaptian Kud and Ors That was a case of a ship owned by the Ukrainian Government where the Supreme Court directed release of the said ship on certain conditions. The said judgment does not refer to the provisions of section 86. It is, therefore, implicit in the said judgment that the provisions of the said Section have no application to Admiralty suits. ( 24 ) THERE is another way of looking at this question. Section 86 of the Code of Civil procedure is a part of the municipal law, which is not the Same as the Admiralty or maritime law as administered by this court. ( 24 ) THERE is another way of looking at this question. Section 86 of the Code of Civil procedure is a part of the municipal law, which is not the Same as the Admiralty or maritime law as administered by this court. ( 25 ) THE clearest exposition of the law relating to sovereign immunity in my judgment is in the decision of the English House of Lords in the case of 7 Congreso del Partido", where their Lordships held that actions, whether commenced in personam or in rem were to be decided according to the restrictive theory of sovereign immunity so that a sovereign "state had no absolute immunity as regards commercial or trading transactions. Whether an act of a sovereign State attracted sovereign immunity depended on whether the act in question was a private act (jure gestionis) or a sovereign or public act (jure imperii), and the fact that the act was done for Governmental or political reasons would not convert what would otherwise be an act jure gestionis or an act of private law into one done jure imperil', In considering whether State immunity should be granted, the Court had to consider the whole context in which the claim against the State was made, with a view to deciding whether the relevant act on which the claim was based should, in the context, be considered as fairly within an area of activity, trading or commercial or otherwise, of a private law character in which the State had chosen to engage or whether the relevant act should be considered as having been done outside that area and within the sphere of Governmental sovereignty. (Head Note) ( 26 ) IT was however submitted on behalf ot the petitioner that the aforesaid decision of the House of Lords was given after the enactment of the English State Immunity Act, 1978 and as there is no corresponding provision in our laws, the said decision cannot be relied upon by the plaintiff. The said decision however follows the ruling of the Privy Council in the case of the "owners of the Ship Philippine Admiral v. Wallem Shipping (Hong kong) Ltd. and Ors. The said decision however follows the ruling of the Privy Council in the case of the "owners of the Ship Philippine Admiral v. Wallem Shipping (Hong kong) Ltd. and Ors. ", where their Lordships speaking in the same vein held that a foreign government was not entitled to claim sovereign immunity in cases where an action in rem was brought against a vessel owned by that government if the vessel was being used, either by the Government itself or by a third party, for trending purposes and not for the public service. In considering whether the ship was at the relevant time a mere trading vessel, regard was to be had to the ship's past history which showed that. the ship had always operated as an ordinary merchant ship. The fact that Liberation's rights were subject to the reparations Act and the contract with the commission did not mean that the ship was to be treated as other than an ordinary trading ship when considering the application of the doctrine of sovereign immunity either at the commencement of the proceedings in rem or when the claim to stay those proceedings was made. Moreover the ship had been used for commercial purposes while the republic was its owner and it could not be supposed that such user would chage after the republic had retaken possession of it. (Head Note) ( 27 ) THERE is no reason why the law laid down in England as aforesaid should not also be relevant to the Admiralty law administered by this court indeed, as the Supreme Court has observed in the case of "m. V. Elizabeth v. Harwan Investment and Trading Pvt. Ltd. , goa" that the Admiralty laws as administered to this country should not be allowed to remain stultified and frozen. I therefore hold against the petitioner in respect of this ground. ( 28 ) THE next ground urged on behalf of the petitioner is; (B) The territorial limits of the Admiralty jurisdiction of this court:-"this court has been duly constituted as the court of Admiralty by Section 2 of the Colonial Courts of Admiralty (India)act, 1891 which provides: The following Courts of unlimited civil jurisdiction are hereby declared to be Colonial courts of Admiralty, namely. . . . . . ". The expression "unlimited civil jurisdiction" per force means unlimited both with regard to pecuniary and territorial jurisdictions. . . . . . ". The expression "unlimited civil jurisdiction" per force means unlimited both with regard to pecuniary and territorial jurisdictions. Indeed, in the statements of objects and reasons It is stated as follows:-" (5) The Governor General in Council has accepted the opinion of the Governor of Bombay in Council, and the unanimous opinion of the Hon'ble the chief Justice and the Judges of the Calcutta High Court, that the jurisdiction of Colonial Courts of Admiralty in India should not be limited territorially or otherwise. " ( 29 ) IT will be apposite at this stage to notice the following Sections of the Colonial courts of Admiralty Act, 1890, which is the principal Act:-" (2) The jurisdiction of a Colonial Courts of Admiralty shall, subject to the provisions of this Act. be over the like places, persons, matters, and things, as the admiralty jurisdiction of the High Court in England, whether existing by virtue of any statute or otherwise and the Colonial courts of Admiralty may exercise such jurisdiction in like manner and to as full an extent as the High Court in england, and shall have the same regard as that court to international law and the comity of nations. "" (3) Subject to the provisions of this Act any enactment referring to a Vice-Admiralty Court, which is contained in an act of the Imperial Parliament pr in a colonial law, shall apply to a Colonial courts of Admiralty, and be read as if the expression "colonial Courts of Admiralty" were therein, substituted for "vice Admiralty Court" or for other expressions respectively referring to such vice-Admiralty* Courts or the Judge thereof, and the Colonial Courts of Admiralty shall have jurisdiction accordingly: provided as follows : (a) Any enactment in an Act of the imperial Parliament referring to the admiralty jurisdiction of the High court in England when applied to colonial Courts of Admiralty in a british possession, shall be read as if the name of that possession were therein substituted for England and wales; and. . . . . . . . ". . . . . . . . ". ( 30 ) THE aforesaid enactments equate this court with the High Court in England for the purpose of exercising its Admiralty jurisdiction as the Admiralty jurisdiction of the English court extends throughout that country, there is no reason why the Admiralty jurisdiction of this court should not extend throughout this country as well. ( 31 ) INDEED, the aforesaid 1891 Act makes it clear that this court in its Admiralty jurisdiction has unlimited, pecuniary and territorial jurisdiction. To contend otherwise would be obviously fallacious. ( 32 ) I am supported in the view that I have taken by the unreported judgment of Ranojit kumar Mitra, In the case of "alexendrose dryson S. A. v. Owners and Parties Interested in "m. V, Prapti". In that case the learned judge confirmed the ad-interim order of arrest of a vessel lying in a Port in the Gujarat state. ( 33 ) THE other point raised on this aspect of the Admiralty jurisdiction of this court was that the said ship was arrested beyond the territorial waters of this country and as such the arrest of the ship is illegal and void. ( 34 ) IT was urged on behalf of the petitioner that in Paragraph 31 of the plaint it is stated as follows:- " The said vessel has entered and/or is about to enter the 'territorial waters of India and is to anchor at the Port of mumbai. . ,. . . ". It was stated in Paragraph 9 of the petition that at the time of its arrest the said ship; was lying at latitude 19. 09. 9n- longitude 72. 29,3e. . . . " which is at a distance of 16. 8 nautical miles away from coastal line of india". In support, the petitoner has relied on the entry in the Log Book of the said ship as also the transcript of the conversation between the Master of the Ship and the Coast-Guards. In support of its contention-that the Admiralty jurisdiction of this court does not extend beyond the territorial waters of this country, reliance was sought to be placed on the judgment of the Supreme Court "in re M. V. Elisabeth v. Harwan Investment and Trading Pot. In support of its contention-that the Admiralty jurisdiction of this court does not extend beyond the territorial waters of this country, reliance was sought to be placed on the judgment of the Supreme Court "in re M. V. Elisabeth v. Harwan Investment and Trading Pot. Ltd. ", (supra), where it is stated in Paragraph 56 at page 1031 of the report as follows:-"it is, however, imperative in an action in rem that the ship should be within jurisdiction at the time the proceedings are started. . . . . " and again in Paragraph 83 at page 1039 of the report as follows:-"the admiralty jurisdiction of the high Court is dependant on the presence of the foreign ship in Indian waters and founded on the arrest of that ship. This jurisdiction can be aussumed by the concerned High court, whether or not the defendant resides or carries on business, or the cause of action arose wholly or in part, within the local limits of its jurisdiction. Once a foreign ship is arrested within the local limits of the jurisdiction of the High Court, and the owner of the ship has entered appearance and furnished security to the satisfaction of the High court for the release of the ship, the proceedings continue as a personal action. " ( 35 ) IT would be wrong in my Opinion to read the aforsaid observations of the Supreme court out of context. What the Supreme Court in that case has laid down is that the jurisdiction of this court as an Admiralty Court is plenary and unfettered. In that case the Supreme court has in no uncertain terms held that the admiralty or Maritime law as administered by this court cannot be stultified or frozen. It was not the intention of the Supreme Court in that case to abridge the jurisdiction of this court as an Admiralty Court. The jurisdiction of this court as an Admiralty Court is by the terms of the aforesaid 1891 Act unlimited. ( 36 ) HOWEVER, it is true that the jurisdiction of this court is coterminous with the territory to which the sovereignty of this country extends. ( 37 ) IT, would be necessary therefore to consider in this context the provisions of the territorial Waters, Continental Shelf, Exclusive economic Zone and other Maritime Zones Act, 1976. ( 36 ) HOWEVER, it is true that the jurisdiction of this court is coterminous with the territory to which the sovereignty of this country extends. ( 37 ) IT, would be necessary therefore to consider in this context the provisions of the territorial Waters, Continental Shelf, Exclusive economic Zone and other Maritime Zones Act, 1976. Section 3 of the said 1976 Act, in so far as it is material provides as follows:" (1) The sovereignty of India extends and has always extended to the Territorial waters of India (hereinafter referred to as the territorial waters) and to the seabed and subsoil underlying, and the air space over such waters. (2) The limit of the territorial waters is the line every point of which is at a distance of twelve nautical miles form the nearest point of the appropriate baseline. "section 6 qf the said 1976 Act, in so far as it is material provides as follows:-" (1) The Continental Shelf of India (hereinafter referred to as the continental shelf) comprises the seabed and subsoil of the submarine areas that extend beyond the limit of its territorial waters throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of two hundred nautical miles from the baseline referred to in sub-section (2) of section 3 where the outer edge of the continental margin does not extend up to that distance. (2) India has, and always had, full and exclusive sovereign rights in respect of its continental shelf. (3) Without prejudice to the generality of the provisions of sub-section (2), the union has in the continental shelf ,- (a) Sovereign rights for the purposes of exploration, exploitation, conservation and management of all resources; (b) exclusive rights and jurisdiction for the construction, maintenance or operation of artificial islands, off shore terminals, installations and other structures and devices necessary for the exploration and exploitation of the resources, of the continental shelf or for the convenience of shipping or for any other purpose; (c) exclusive jurisdiction to authorise, regulate and control scientific research and (d) exclusive jurisdiction to preserve and protect the marine environment and to prevent and control marine pollution. (4) No person (including a foreign Government) shall, except under, and in accordance with, the terms of a licence or a letter of authority granted by the Central Government, explore the continental shelf or exploit its resources or carry out any search or excavation or conduct any research within the continental shelf or drill, therein or construct, maintain or operate any artificial island, off-shore terminal, instalisation or other structure or device therein for any purpose whatsoever. " ( 38 ) THE question whether the jurisdiction of this court as an Admirailty Court extends to the continental shelf of this country having regard to the provisions of the aforesaid Act, in my opinion, should be decided when this suit comes to be tried by this court and more elaborate submissions are made in this behalf. ( 39 ) HOWEVER, there is a dispute as to whether or not the ship was arrested beyond the territorial waters of this country. The deputy Sheriff and Admiralty Marshal of this court has in his letter dated 28th October, 1997 stated as follows:-"my Officer Mr. S. Chakraborty boarded the vessel on Sunday the 19th October, 1997 to serve the order dated 17. 10. 1997 of Hon'ble Calcutta High court when he was given to understand that the vessel was about 9 to 10 (nautical) miles from Bombay Coast. The service was refused by the Master of the tug who also refused to accept the same. . . . . . "the "tug" referred to in the said letter is the subject ship. A copy of said letter is an annexure to the affidavit-in-opposition filed on behalf of the plaintiff. This again raises a disputed question of fact and the same cannot be resolved unless this suit is tried. ( 40 ) ANOTHER point that was urged on behalf of the petitioner was that although the international Convention relating to the Arrest of the Seagoing Ships, Brussels. 10th May, 1952 provides that a maritime claim will arise out of a towage contract but as this country has not adopted the said convention, the said convention does not apply and therefore it cannot be said that a maritime claim or lien has arisen on the basis of the averments made in the plaint. 10th May, 1952 provides that a maritime claim will arise out of a towage contract but as this country has not adopted the said convention, the said convention does not apply and therefore it cannot be said that a maritime claim or lien has arisen on the basis of the averments made in the plaint. In my opinion, there is no substance in this contention as the Supreme Court in its judgment in the case of "in re: Elizabeth" (Supra) has held as follows (in Paragraph 77 of the report):". . . . . . . . . ALTHOUGH these convention has not been adopted by legislation, the principles incorporated in the conventions are themselves derived from the common law of nations as embodying the felt necessities of international trade and are as such part of the common law of india and applicable for the enforcement of maritime claims against foreign ships. " ( 41 ) FOR the reasons stated above, this motion must fail and the same is accordingly dismissed. ( 42 ) COST costs in the cause. ( 43 ) IT would be open to the defendant to deposit the rupee equivalent of the amount claimed by the plaintiff in this suit with the registrar, Original Side of this court and upon such deposit being made the order of arrest shall stand vacated. In the event such deposit is made, the Registrar shall invest the same in a shor-term fixed deposit account to the credit of this suit with the ANZ Grindlays Bank, church Lane Branch, Calcutta and keep such deposit renewed until further orders of this court. ( 44 ) IT would further open to the parties to apply for expeditious trial of this suit. The respective Notes of Argument that were submitted by the parties albeit with some delay after the hearing on the motion was concluded are directed to be kept on record. .