D. A. MEHTA, J. ( 1 ) THE applicant (original defendant) is a vessel owned by Pertama Maritime Pte Ltd. , Singapore and flies a foreign flag. On 08-10-2001 the applicant - vessel was arrested at the Port of Kandla pursuant to the order of this Court (Coram : N. G. Nandi,j ). The respondent is the original - plaintiff in the suit and it is at the behest of the respondent - plaintiff that the aforesaid order of arrest was made on 08-10-2001. The say of the applicant is that the ex-parte order of arrest had been obtained by the respondent - plaintiff after the vessel had completely discharged its cargo at Kandla Port and as the vessel was ready to sail from Kandla Port on 09-10-2001 due to an alternate employment, the order of arrest was causing serious prejudice and loss to the owner of the applicant - vessel. Therefore the owner, under compulsion, furnished a letter of undertaking as security for release of the applicant - vessel. The case of the applicant is that the plaintiff demanded a letter of undertaking in amounts far in excess of the alleged claim as pleaded in the suit and for amounts to which the respondent - plaintiff was not even entitled. In short, the applicant provided an undertaking of the Protection and Indemnity Association to the extent of US$ 222400. 00 even though the purported claim pleaded by the respondent plaintiff in the suit is only to the extent of US$ 162000. 00. The applicant further avers that the letter of undertaking was furnished without prejudice to its rights and contentions and therefore by way of the present application, the applicant is seeking return and/or cancellation of letter of undertaking dated 18-10-2001. The applicant has also made a prayer for damages for wrongful arrest. The prayers made in the present application read as under :"a) The letter of undertaking dated 18/10/2001 furnished as security to the Plaintiff for release of the Applicant vessel be discharged and the Plaintiff be directed to return the same to the owners of the Applicant vessel;b) That the Plaintiff be directed to pay to the Owners of the Applicant vessel a sum of US$ 45,000. 00 (United States Dollars Forty five Thousand) as compensation and/or damages for the arrest and detention of the Applicant vessel;c) For such other and further reliefs as this Honble Court may deem fit and proper in the facts and circumstances of the case. " ( 2 ) ). THE case of the applicant is that the respondent - plaintiff is the charterer of the applicant - vessel and is admittedly not the shipper of the cargo. Thus, the respondent has no right, title or interest in the cargo and cannot demand the delivery of the cargo as the charterer does not hold the original Bills of Lading which depict the title in respect of the cargo. Accordingly, the respondent - plaintiff does not have any right to sue and the admiralty suit filed by the respondent - plaintiff is based on a false premise and is bogus and vexatious. It is further stated that even assuming that the respondent - plaintiff can claim to be entitled to delivery of the goods, there can be no cause of action for arrest of the vessel once the goods in question are not on the vessel as the same have already been discharged at Kandla Port. That it would be always open for the respondent - plaintiff to take delivery by securing the lien of the applicant, and the respondent plaintiff having not acted for a period of more than six months and allowed the goods to remain in Kandla Port, it would go to show that the respondent - plaintiff has no title to the goods and is not the owner thereof and is not entitled to delivery of the same. That the applicants lien which was for approximately Rs. 50,00,000/= could have been secured by the respondent - plaintiff without incurring a loss of Rs. 77,50,000/= as claimed in the plaint. The applicant further avers that the respondent - plaintiff has failed to make out any prima facie case, much less a strong prima facie case to demonstrate various losses claimed under different heads. ( 3 ) ). ON behalf of the respondent - plaintiff it is stated that on the date of filing of the suit the respondent - plaintiff was the owner of the cargo. ( 3 ) ). ON behalf of the respondent - plaintiff it is stated that on the date of filing of the suit the respondent - plaintiff was the owner of the cargo. That by virtue of an arrangement with its wholly owned subsidiary M/s. G. G. Impact Pte Ltd. , Singapore, one PEC Limited became the notified party as it had financed the purchase of the cargo and had accordingly opened a letter of credit on behalf of the respondent - plaintiff. Thereafter by virtue of an associate agreement executed at New Delhi on 20-09-2001, PEC Limited sold the cargo on High Seas basis to the respondent, and accordingly on the date of arrival of the vessel at Kandla Port, the respondent - plaintiff had derived title in the cargo and was entitled to delivery thereof. It is further stated that the original Bill of Lading was endorsed in favour of the respondent - plaintiff by PEC Limited thus, entitling the respondent - plaintiff to the goods in question. ( 4 ) ). MR. PRASHANT S. Pratap with Mr. A. S. Vakil appeared for the applicant while Mr. S. Venkiteshwaran with Mr. P. R. Nanavati appeared for the respondent - plaintiff. For appreciating the respective contentions it is necessary to briefly set out the relevant facts giving rise to the controversy. ( 5 ) ). ON 25-05-2001, a Charter-party agreement was entered into between the owner of the applicant - vessel and the respondent - plaintiff. The agreement was for the purpose of carrying Wooden Logs from Solomon Island to Kandla Port. It appears that under the Charter-party terms the rate of freight was agreed on a slab basis depending upon the quantity of the cargo. The minimum quantity was fixed at 7000 cbm and it was envisaged that the rate would be US$ 41. 00 per cbm for the minimum quantity of 7000 cbm; the rate would be US$ 40. 00 per cbm for a quantity not less than 10000 cbm and the rate would be US$ 35. 00 per cbm, if the quantity was not less than 15000 cbm. On this schedule of rates there is no dispute between the parties. The terms further stipulate that the cargo to be supplied was to be of specific gravity of 0. 57 and the vessel was to load minimum 15000 cbm on the basis of the said specific gravity. 00 per cbm, if the quantity was not less than 15000 cbm. On this schedule of rates there is no dispute between the parties. The terms further stipulate that the cargo to be supplied was to be of specific gravity of 0. 57 and the vessel was to load minimum 15000 cbm on the basis of the said specific gravity. It is an admitted position between the parties that the minimum load was agreed at 15000 cbm but there is a variance between the parties as to the specific gravity : the case of the plaintiff being that the specific gravity was not to be taken into consideration, while the owner of the applicant - vessel insisting that specific gravity was an essential ingredient of the agreement and the load of cargo was to be taken by the vessel on the basis of the same. It appears that the vessel was to load at 4 different ports in the Solomon Island and there was no problem while the loading was on at the first 3 ports, except for the fact that it is the say of the applicant that the Master of the vessel was closely monitoring specific gravity of the goods in view of the fact that the same were different depending on different logs. However, while loading was on at the last Port (Mare), the Master of the vessel became concerned that in view of the specific gravity being on higher side, there might be difficulty in loading 4000 cbm at that port. It is at this stage that the parties joined issue. The case of the respondent - plaintiff is that the shippers were stopped from loading the cargo by the Master of the vessel and hence there was short-loading to the extent of 110 cbm, while the case of the applicant - defendant is that the shippers supplied 110 cbm short even though they were never stopped by the Master of the vessel from loading cargo. Ultimately, it appears that the vessel sailed with a cargo of 14890 cbm of Wooden Logs. Accordingly, the owner of the applicant vessel raised an invoice dated 13-08-2001 on the basis of total quantity loaded at 14890 cbm, the freight payable being US$ 40. 00 per cbm. Ultimately, it appears that the vessel sailed with a cargo of 14890 cbm of Wooden Logs. Accordingly, the owner of the applicant vessel raised an invoice dated 13-08-2001 on the basis of total quantity loaded at 14890 cbm, the freight payable being US$ 40. 00 per cbm. The case of the owner of the vessel is that once the total quantity loaded was less than 15000 cbm, the minimum stipulated, the rate of US$ 35. 00 per cbm would not apply and the rate of US$ 40. 00 per cbm would be applicable. Thus, an invoice of US$ 595612. 80 was raised and after deducting commission, net amount claimed was US$ 580722. 48. Thereafter, the parties entered into correspondence as to at whose instance there was short loading of cargo, what would be the liability of the respondent - plaintiff towards freight in such circumstances. Suffice it to state that ultimately on 02-10-2001, the respondent - plaintiff through M/s. G. G. Impact Pte Ltd. (its wholly owned subsidiary) made payment of US$ 511875. 00. This figure was arrived at by applying rate of US$ 35. 00 per cbm to the total quantity carried by the vessel i. e. 14890 cbm. Thus, according to the applicant, the respondent - plaintiff had paid US$ 69000. 00 short towards freight entitling the applicant to exercise lien on the cargo in respect of this amount and consequently the applicant exercised its lien on 2030 cbm in respect of unpaid freight and other charges. ( 6 ) ). IN the intervening period i. e. from the time the invoice was raised till the payment was made on 02-10-2001, it appears that some agreements were entered into for High Seas Sale on 16-09-2001. The applicant vessel reached at the Kandla Port on 19-09-2001. The applicant gave notice to the Kandla Port Trust under Section 60 of the Major Port Trusts Act, 1963 as regards exercise of lien on entire cargo as no freight was paid till that date. The case of the respondent - plaintiff is that on 28-09-2001, the respondent informed the applicant not to discharge the cargo as original Bills of Lading were not received. On 01-10-2001 the applicant commenced discharge of goods under lien as it was not possible to retain the goods indefinitely on the vessel and cause detention of the vessel, the owner having entered into another Charter-party with third party. On 01-10-2001 the applicant commenced discharge of goods under lien as it was not possible to retain the goods indefinitely on the vessel and cause detention of the vessel, the owner having entered into another Charter-party with third party. On 02-10-2001, as stated hereinbefore, freight of US$ 511875. 00 was paid and the applicant was agreeable to release 12860 cbm of cargo to holders of original Bills of Lading while retaining 2030 cbm under lien for the short payment to the extent of US$ 69000. 00. Till 08-10-2001 when the vessel completed discharge of the goods, no person had come forward to take delivery of the goods for 12860 cbm. ( 7 ) ). ON 08-10-2001 the respondent - plaintiff approached this Court by way of Admiralty Suit No. 23 of 2001 seeking release of 2030 cbm of the goods and for various amounts of damages as stated in paragraph 7 of the plaint. The said paragraph reads as under :"7. The Plaintiff says and submits that in view of the lien over the goods continued by the defendants, the Plaintiff is not in a position to take delivery and possession of the goods, as a result whereof, the Plaintiff has suffered and is likely to suffer loss, harm and damage. The Plaintiff has already incurred Rs. 20,00,000 as dumping, reloading and demurrage. The Plaintiff further says and submits that the goods being perishable in nature are likely to deteriorate in quality and the loss due to deterioration in quality is presently estimated at Rs. 25,00,000. The Plaintiff, however, craves leave to revise the Plaintiffs claim on account of loss due to deterioration in quality of the goods. Having purchased the quantity of logs, the Plaintiff has already entered into various contracts for supply of logs to various parties. However, as the Plaintiff is not a position to take delivery of the cargo and supply the same to the ultimate purchasers, several contracts entered into by the Plaintiff have been cancelled and are likely to be cancelled. The estimated loss on account of cancellation of contracts with the buyers is estimated at Rs. 25,00,000. The Plaintiff has already incurred an expenses of Rs. 500,000 on account of legal fees and related expenses. The plaintiff has also incurred incidental expenses of Rs. 250,000. Accordingly, the Plaintiff is entitled as on date to a total amount of Rs. The estimated loss on account of cancellation of contracts with the buyers is estimated at Rs. 25,00,000. The Plaintiff has already incurred an expenses of Rs. 500,000 on account of legal fees and related expenses. The plaintiff has also incurred incidental expenses of Rs. 250,000. Accordingly, the Plaintiff is entitled as on date to a total amount of Rs. 77,50,000 on various accounts as indicated hereinabove. The Plaintiff craves leave to amend this plaint for claiming additional amounts which the Plaintiff may become entitled to recover from the defendant on any of the above accounts. " ( 8 ) ). ACCORDINGLY on 08-10-2001 an ex-parte order of arrest was granted in favour of the respondent plaintiff. On 18-10-2001, the applicant vessel furnished security for release of the ship without prejudice to its rights and contentions. ( 9 ) ). ON 02-11-2001 two parties, namely, Shipra Wood Products and Elite Wood Works came forward to take delivery of 12860 cbm on the basis of High Seas Sale Agreements executed on 16-09-2001 by surrendering the original Bills of Lading covering the said quantity of the goods. ( 10 ) ). ON 26-11-2001 the applicant approached the Kandla Port Trust for sale of the cargo of 2030 cbm under the provisions of Section 61 of the Major Port Trusts Act, 1963 as the lien had not been discharged till then. On 28-11-2001 Civil Application No. 242 of 2001 was filed by the respondent (original plaintiff) praying to the Court to restrain the defendant (i. e. the applicant herein) from selling, alienating, transferring ownership or possession of 2030 cbm of Wooden Logs lying at Kandla Port. In view of the fact that the sale had to take place under the provisions of Section 61 of the Major Port Trusts Act, 1963, the Kandla Port Trust was also joined as party respondent in the said Civil Application. Ultimately on 02-04-2002 the following order was passed in the said civil application :-"mr. P. R. NANAVATI on behalf of the applicant plaintiff seeks permission to withdraw the application. Permission granted. It will now be open to the Kandla Port Trust to take appropriate steps to dispose of 2030. 252 CBM of Wooden Logs presently lying at Kandla Port Trust in accordance with the provisions of Section 61 of the Major Port Trusts Act, 1963 as expeditiously as may be possible, as the statutory period has already expired. Permission granted. It will now be open to the Kandla Port Trust to take appropriate steps to dispose of 2030. 252 CBM of Wooden Logs presently lying at Kandla Port Trust in accordance with the provisions of Section 61 of the Major Port Trusts Act, 1963 as expeditiously as may be possible, as the statutory period has already expired. The defendant shall place on record the details of sale price realised, the charges recovered by the Port Trust and the amount received by the defendant on sale of the aforesaid cargo. This Civil Application is accordingly disposed off. Notice is discharged. It is in the backdrop of the aforesaid facts and events that the present M. C. A. requires to be decided. ( 11 ) ). IN the book VOYAGE CHARTERS by JULIAN COOKE, JOHN D. KIMBALL, TIMOTHY YOUNG, DAVID MARTOWSKI, ANDREW TAYLOR, LEROY LAMBERT, Second Edition, in the chapter dealing Bills of Lading it is stated thus at paragraphs 18. 159 and 18. 160 at page 484 :"18. 159 The present trend of authority greatly favours a clear, simple and strict rule obliging a carrier to require the surrender of a bill of lading before effecting delivery. The strictness of the rule is so well established that even where a carrier delivers in good faith against surrender of a bill of lading which he reasonably but erroneously believes to be a valid original bill, it being in fact a forgery, he is still liable for misdelivery : Motis Exports v. Dampskibs. AF 1912. Indeed, it may even be a breach of contract for the carrier to deliver goods to their lawful owner if the latter cannot produce a valid bill of lading, although the damages for such breach would normally be nil, as noted by the Court of Appeal in The Houda. 18. 160 The corollary of this is twofold. Where the lawful owner cannot produce a bill of lading the carrier refusing to deliver to him would have a defence to a claim in conversion. Also a charterer may not (absent special terms or under a "non-negotiable" bill of lading) lawfully order a shipowner to deliver otherwise than against surrender of an original bill of lading. " ( 12 ) ). SECTION - 1 of The Indian Bills of Lading ACT (IX of 1856) reads as under :"1. Also a charterer may not (absent special terms or under a "non-negotiable" bill of lading) lawfully order a shipowner to deliver otherwise than against surrender of an original bill of lading. " ( 12 ) ). SECTION - 1 of The Indian Bills of Lading ACT (IX of 1856) reads as under :"1. Rights under bills of lading to vest in consignee or endorsee.-EVERY consignee of goods named in a bill of lading and every endorsee of a bill of lading to whom the property in the goods therein mentioned shall pass upon or by reason of such consignment or endorsement shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself. " ( 13 ) ). ON the basis of aforesaid commentary and the section, the case of the applicant that the respondent plaintiff has no right to file a suit, prima facie appears to be acceptable. As can be seen from the facts which have come on record, till date the original bill of lading for goods of 2030 cbm has not been presented either by the respondent - plaintiff or any other person. Admittedly, the respondent - plaintiff is not a consignee of the goods in question, atleast nothing has come on record. Though it is averred on behalf of the respondent plaintiff that by virtue of High Seas Sale Agreement, it becomes the person entitled to the goods in question, neither any agreement nor any Bill of Lading as regards 2030 cbm has been brought on record. However, in view of the fact that this Court is not deciding the suit at present, it would be open to the parties to adduce the necessary evidence, if permissible at the relevant point of time. ( 14 ) ). However, in view of the fact that this Court is not deciding the suit at present, it would be open to the parties to adduce the necessary evidence, if permissible at the relevant point of time. ( 14 ) ). IN the case of THE "vasso" (formerly "andria), the Court of Appeal in a decision rendered on 19-12-1983 has stated thus in relation to exercise of admiralty jurisdiction :"it is axiomatic that in ex parte proceedings there should be full and frank disclosure to the Court of facts known to the applicant, and that failure to make such disclosure may result in the discharge of any order made upon the ex parte application, even though the facts were such that, with full disclosure, an order would have been justified : "reference : Lloyds Law Reports, [1984] Vol. 1, 235. ( 15 ) ). IN a decision rendered in the case of THE "albazero", the House of Lords laid down thus :"with the passing of the Bills of Lading Act, 1855, the rationale of Dunlop v. Lambert could no longer apply in cases where the only contract of carriage into which the shipowner had entered was that contained in a bill of lading, and the property in the goods passed to the consignee or indorsee named in the bill of lading by reason of the consignment or indorsement. Upon that happening the right of suit against the shipowner in respect of obligations arising under the contract of carriage passes to him from the consignor. Furthermore, a holder of the bill for valuable consideration in exercising his own right of suit has the benefit of an estoppel not available to the consignor that the bill of lading is conclusive evidence against the shipowner of the shipment of the goods described in it. THE rationale of the rule is in my view also incapable of justifying its extension to contracts for carriage of goods which contemplate that the carrier will also enter into separate contracts of carriage with whoever may become the owner of goods carried pursuant to the original contract. A charter-party which provides for the issue of bills of lading covering the carriage of particular goods shipped on the chartered vessel is such a contract, whether it be a voyage or a time charter. A charter-party which provides for the issue of bills of lading covering the carriage of particular goods shipped on the chartered vessel is such a contract, whether it be a voyage or a time charter. While it is generally the case with a voyage charter that the terms of the charter-party are incorporated in the bills of lading required or authorized to be issued under it by the shipowner, even if the contractual rights of the parties under the charter were identical with those of the parties under the bill of lading, there would be no sensible business reason for inferring that the shipowner in entering into the charter-party intended to accept concurrent liabilities to be sued for the same loss or damage by the charterer and by the consignee or indorsee of the bill of lading. A fortiori there can be no sensible business reason for extending the rules to cases where the contractual rights of the charterer under the charter-party are not identical with those of the bill of lading holder whose goods are lost or damaged;. . . . . . "reference : Lloyds Law Reports [1976] Vol. 2, 467. ( 16 ) ). IF the aforesaid principles are applied to the facts of the case, it is apparent that the ex-parte order has been obtained without placing on record full facts. It may be that due to the impending urgency and the anxiety that the vessel may not leave territorial jurisdiction of the Court complete facts may have not been placed on record and hence without dilating any further this aspect of the matter may be left at this stage to be finally decided when the suit is heard. ( 17 ) ). HOWEVER, as already stated, the charterer i. e. the respondent - plaintiff has not been able to show that its contractual rights are identical with those of bill of lading holders and in such circumstances, it would not be possible to hold that the shipowner entering into the charter party intended to accept concurrent liabilities to be sued for the same damage by the charterer and by the consignee or the endorsee of the Bill of Lading. ( 18 ) ). AS can be seen from paragraph 7 of the plaint, the respondent - plaintiff has divided the claim for damages under 5 different heads. To recapitulate : (1) rs. 20,00,000. ( 18 ) ). AS can be seen from paragraph 7 of the plaint, the respondent - plaintiff has divided the claim for damages under 5 different heads. To recapitulate : (1) rs. 20,00,000. 00 - For dumping, reloading and demurrage. (2) Rs. 25,00,000. 00 - Due to deterioration in quality. (3) Rs. 25,00,000. 00 - Estimated loss on account of cancellation of contracts with buyers. (4) Rs. 5,00,000. 00 - On account of legal fees and related expenses. (5) Rs. 2,50,000. 00 - Towards incidental expenses. Total Rs. 77,50,000. 00 =============== ( 19 ) ). THE facts which have come on record depict that 110 cbm cargo was short loaded and by virtue of the same, the dispute between the parties has arisen as to the rate of freight which is applicable on the quantity of cargo loaded i. e. 14890 cbm. The following facts are relevant and material in so far as the conduct of the respondent - plaintiff is concerned. (A) Though the owner of the applicant - vessel had exercised lien in respect of 2030 cbm of cargo still the remaining cargo to the tune of 12860 cbm was available for delivery from 24-09-2001 till 02-11-2001, yet no person came forward to claim delivery; (B) Even after the delivery of 12806 cbm of cargo to Shipra Wood Products Ltd. and Elite Wood Works on 02-11-2001, till date the balance cargo has not been claimed by any person by presenting the original Bill of Lading, thus, belying the claim of the respondent plaintiff that it had obtained the Bill of lading by endorsement in its favour and was entitled to delivery in view of the sale on High Seas basis. ( 20 ) ). IN view of what is stated hereinbefore and the fact that the suit has not been heard, it would not be possible at this stage to direct return and/or cancellation of the letter of undertaking dated 18-10-2001 furnished as a security to the respondent plaintiff for release of the applicant - vessel. However, during course of hearing, on behalf of the applicant an alternative contention was raised that if the Court feels that the claim of the respondent plaintiff to the extent of Rs. However, during course of hearing, on behalf of the applicant an alternative contention was raised that if the Court feels that the claim of the respondent plaintiff to the extent of Rs. 77,50,000/= is not justified in entirety, but only partially, the Court may direct the applicant to furnish a fresh letter of undertaking for a reduced amount in lieu of the original letter of undertaking dated 18-10-2001. . ( 21 ) ). AT the time of hearing the learned counsel appearing on behalf of respondent - plaintiff was specifically asked the basis for making a claim under the head dumping, reloading and demurrage when, in fact, it was the applicant who had incurred the expenses for discharging the goods from the vessel, transporting to the storage area and incurring demurrage. The explanation tendered on behalf of the respondent plaintiff was that the shippers, who were acting on behalf of the charterer had brought the goods i. e Wooden Logs to the Port of Mare of Solomon Islands and because the Master of the vessel did not permit loading of 110 cbm of goods such expenses had been incurred by the respondent - plaintiff. This explanation, to say the least is nothing but ingenuity of the learned counsel as the pleadings go to show. In the affidavit-in-reply of respondent i. e. original plaintiff dated 11-10-2002, one Mr. Amardeep Parmar, Authorized Signatory of the respondent states thus in paragraph 11 :-"by a letter dated 28th September, 2001, the Applicant was notified not to discharge the cargo and was put to notice that in case the Applicant was to commence the discharge of the cargo, it shall be at their own risk and costs and the charges like dumping, reloading, demurrage, handling charges, etc. , would be on account of the Applicant. . . . . . " ( 22 ) ). THUS, it is abundantly clear that the claim under the first head for dumping, reloading and demurrage is not supported by any evidence and is without any basis. ( 23 ) ). SIMILARLY, the claim made for loss on account of alleged cancellation of contracts estimated at Rs. 25,00,000/= also is not borne out from any material on record. THUS, it is abundantly clear that the claim under the first head for dumping, reloading and demurrage is not supported by any evidence and is without any basis. ( 23 ) ). SIMILARLY, the claim made for loss on account of alleged cancellation of contracts estimated at Rs. 25,00,000/= also is not borne out from any material on record. At the cost of repetition, it needs to be stated that out of total cargo of 14890 cbm, 12860 cbm quantity has already been delivered to two parties and only 2030 cbm of goods in question remained under lien. (Now even they are subject to the provisions of Major Port Trusts Act, 1963 in light of the order dated 02-04-2002 passed in OJCA No. 242 of 2001 ). The respondent - plaintiff has not even stated as to with whom the contracts were entered into, what was the value of such contracts, at what point of time such contracts came to be cancelled and what are the claims made for damages against the respondent plaintiff for such alleged cancellation. In fact the respondent - plaintiff itself has stated that the said figure is based on a estimate. Even if the figure was estimated when the suit was filed in October, 2001, till the point of time this application came to be heard nothing has been brought on record to substantiate the said estimate. ( 24 ) ). AGAIN the claim on account of legal fees of Rs. 5,00,000/= and incidental expense of Rs. 2,50,000/= are also not borne out from the evidence on record. Even the bare minimum averment as to for what purpose the legal and the incidental expenses have been incurred has not been shown. Even assuming that the legal fees have been incurred on the basis of the present proceedings i. e. Suit, Civil Application and Misc. Civil Application, it is apparent that when the claim was made neither Civil Application nor Misc. Civil Application had been filed and in so far as the claim for legal expenses of the suit is concerned, the same would follow the result of the suit and taking into consideration the explanation which has come on record there is no justification at this stage to bind the applicant defendant in relation to the said item. Civil Application had been filed and in so far as the claim for legal expenses of the suit is concerned, the same would follow the result of the suit and taking into consideration the explanation which has come on record there is no justification at this stage to bind the applicant defendant in relation to the said item. For the same reason the claim for incidental expenses also requires to be deleted from consideration for the present. ( 25 ) ). THEREFORE, out of the total claim for damages to the extent of Rs. 77,50,000/= the claim for Rs. 52,50,000/= is not found tenable. The letter of undertaking furnished by the applicant on 18-10-2001 thus requires to be substituted for a letter of undertaking to the extent of Rs. 25,00,000/= only. The applicant is hereby directed to furnish a fresh letter of undertaking for the aforesaid sum i. e. Rs. 25,00,000/= only and on furnishing of such fresh letter of undertaking the original letter of undertaking dated 18-10-2001 shall be returned to the applicant and shall stand cancelled. ( 26 ) ). THE aforesaid direction to furnish a letter of undertaking to the extent of Rs. 25,00,000/= shall not be construed to mean that the claim of deterioration of goods to the said extent is being accepted. In light of what is stated in the order dated 02-04-2002 in Civil Application No. 242 of 2001, it will become necessary to work out afresh, claims and counter-claims of the parties. ( 27 ) ). THE claim of the applicant towards damages or as compensation for the arrest and detention of the applicant - vessel shall be decided alongwith the suit in light of the fact that the respondent - plaintiff has already tendered an undertaking dated 08-10-2001 as directed by this Court. The respondent - plaintiff has undertaken to pay such sums by way of damages that may be awarded as compensation in the event of the defendant sustaining prejudice pursuant to the order passed by this Court directing the arrest of the defendant vessel. ( 28 ) ). IN the result this Misc. Civil Application is partly allowed to the aforesaid extent. The order of costs shall be made at the time of final determination of the suit. This Misc. Civil Application is disposed of accordingly. .