A. K. BANERJEE, J. ( 1 ) M. V. Nikolaos-S was owned by Third Element enterprises at the relevant time. The vessel was flying a flag of republic of Sipras at the relevant time. The plaintiff supplied bunkers and other necessaries to the said vessel as well as rendered necessary services to her at the Port of Durban on the terms and conditions agreed by and between the parties in or about November, 1999. According to the plaintiff the bunkers were received by the master, the services were rendered to the ship as acknowledged by the master of the vessel. The plaintiff raised invoices on November 26, 1999 for US$ 94,611. 25 which remain unpaid. ( 2 ) WHILE the vessel was at Indian Port the plaintiff filed the above suit on January 6, 2000. Simultaneously with the filing of the suit the plaintiff moved an application for arrest of the ship in question and got the same arrested on the same date i. e. 6th January, 2000. The vessel remain arrested at the Indian Port for few days. None claiming the ownership of the vessel approached this Court for release of the said vessel at that point of time. ( 3 ) ON January 25, 2000 learned counsel appearing for the plaintiff approached the learned admiralty judge expressing the intention of the plaintiffs not to proceed with the application for arrest as according to him, the parties reached an out of Court settlement. This Court recording the said fact dismissed the application for arrest and remained silent on the issue of pendency of the suit. ( 4 ) IT now appears that on January 18, 2000 during the pendency of the suit the plaintiff entered into an agreement (exhibit J) with third Element Enterprises claiming to be the owner of the ship to the effect that the claim of the plaintiff of USS 94. 611. 25 together with interest and cost would be paid by Third Element and so long the money was not paid the ownership of the vessel would not be changed and the plaintiff would be informed about the movement of the vessel from time to time. 611. 25 together with interest and cost would be paid by Third Element and so long the money was not paid the ownership of the vessel would not be changed and the plaintiff would be informed about the movement of the vessel from time to time. Clause 6 of the said agreement provided that if money was not paid within 10 days after the sailing of the ship from the Port of Bangkok or the ship owners committed any breach of any of their obligations stipulated in the said contract the plaintiff would be entitled to take appropriate legal steps including arrest of the vessel for the recovery of the amount or any higher sum as they might be entitled to. ( 5 ) MONEY was not paid to the plaintiff. The plaintiff approached this Court again by way of an application for recall of the order dated january 25, 2000 as also for re-arrest of the ship in question. This court passed an order on May 2. 2000 in terms of prayer (a), (b) and (c) of the notice of motion which are re-produced below:- (a) The order dated 25th January, 2000 be recalled. (b) The Marshal, High Court, be directed to arrest the vessel m. V. Nikolaos-S along with her bunker, apparel and furniture; (c) Injunction restraining the defendant from selling, disposing of, transferring and/or in any way dealing with the defendant vessel M. V. Nikolaos-S without securing the claim of the plaintiff to its satisfaction. ( 6 ) AFTER the vessel was re-arrested M/s. MJR Steel Pvt. Ltd. approached this Court inter alia claiming that the vessel was sold to them by the owners of the said vessel in question and as such they became the owner thereof. This Court released the ship upon security being furnished by MJR Steel Pvt. Ltd. (hereinafter referred to as "mjr") ( 7 ) THE vessel was released upon furnishing of security. ( 8 ) MJR filed written statement and contested the suit. In the written statement MJR contended as follows:-" (1)On April 15, 2000 MJR became the owner. Third Element being original owner sold and transferred the vessel to Eastern Wealth investment Ltd. Eastern Wealth sold her to Fair Steel corporation and Fair Steel Corporation sold her to MJR. ( 8 ) MJR filed written statement and contested the suit. In the written statement MJR contended as follows:-" (1)On April 15, 2000 MJR became the owner. Third Element being original owner sold and transferred the vessel to Eastern Wealth investment Ltd. Eastern Wealth sold her to Fair Steel corporation and Fair Steel Corporation sold her to MJR. (2) The payment of consideration was made through an irrecoverable letter of credit dated April 8, 2000 by a Bill of sale dated April 14, 2000. Physical possession was made over to MJR. Physical delivery certificate was also issued by the master of the Vessel as also the local agent. (3) Having regard to the nature of the claim no maritime lien could be said to exist against the vessel as on the date of acquisition by MJR and as such the plaintiff was not entitled to recover their claim as against the vessel or MJR as the case may be. " ( 9 ) THE suit came up for hearing before me on August. 26, 2004 when the following issues were framed :- (i) Did the plaintiff supply the goods and materials for the operation and maintenance of the vessel M. V. Nikolaos-S? (ii) If so, for what consideration? (iii) Is the plaintiff entitled to claim interest @24% per annum on and from 27th December, 1999 in respect of a sum of US$ 94,611. 25 or at any other rate? (iv) Does the plaintiff have cause of action against the vessel m. V. Nikolaos-S? (v) Is there any maritime lien in respect of the plaintiffs claim in the suit? (vi) Is this suit against the vessel maintainable in the admiralty jurisdiction of this Hon'ble Court? (vii) What reliefs, if any, the parties are entitled to? ( 10 ) ON behalf of the plaintiff one Mr. Stephanos Livanos was called as the sole witness. He claimed to be a director of the plaintiffs company since 1996. He proved the supply as well as services rendered. He also confirmed the settlement arrived at on behalf of the plaintiff on the one hand and Third Element on the other hand after the order of arrest. The relevant documents being invoices, correspondence as well as agreement for compromise were exhibited. He confirmed that after the said agreement having been entered into the plaintiff informed their Calcutta lawyer to lift the order of arrest. The relevant documents being invoices, correspondence as well as agreement for compromise were exhibited. He confirmed that after the said agreement having been entered into the plaintiff informed their Calcutta lawyer to lift the order of arrest. When the money was not forthcoming at their instance the vessel was re-arrested. In cross-examination the witness admitted that he heard about the sale of the ship to MJR at a subsequent stage. He also deposed that the constituted attorney who signed on behalf of the plaintiff in this proceeding was not personally known to him, He, however, confirmed that at his instruction the Calcutta lawyer acted on their behalf in the present suit. In the cross-examination he gave full details of the execution of the agreement for compromise. He also confirmed that the order of arrest was lifted at his instance so as the order of the re-arrest. In answer to question 262 in cross examination he deposed that after the vessel was rearrested the plaintiff came to know about the transfer of ownership to MJR. The plaintiff also produced another witness namely Shri Amar dutta by way of sub poena. He was at the relevant point of time acting on behalf of the local agent of the ship in question. The said Shri amar Dutta was examined by the plaintiff and cross-examined by the defendant. Shri Amar Dutta confirmed the sale of the vessel to mjr. In reply to question No. 22 Mr. Dutta confirmed that at the instruction of the owners the. master delivered the vessel to MJR on april 15, 2000. He also confirmed his signature appearing at the delivery note. The said document was tendered as Exhibit - 5. ( 11 ) THE defendant did not produce any witness. They tendered as many as six exhibits. Those were proved through the plaintiffs witnesses. ( 12 ) ON analysis of the deposition of the plaintiffs witness it appears that plaintiff was able to prove their claim. The claim of the plaintiff was also acknowledged by the owner of the vessel Third Element on january 18, 2000 as would appear from Exhibit J. So from the analysis of the deposition of the plaintiffs witness it can safely be held that plaintiffs claim was proved beyond doubt. The claim of the plaintiff was also acknowledged by the owner of the vessel Third Element on january 18, 2000 as would appear from Exhibit J. So from the analysis of the deposition of the plaintiffs witness it can safely be held that plaintiffs claim was proved beyond doubt. ( 13 ) QUESTION thus remains as to whether the plaintiff was entitled to proceed with their claim as against the vessel M. V. Nikolaos-S or the security furnished by MJR in lieu of release of the ship. ( 14 ) MR. Sudipto Sarkar, learned senior counsel appearing in support of the plaintiff contended as follows :-" (1)On the day of institution of the suit the plaintiff had a lawful claim against the vessel in question and the order of arrest was made which was duly affected on the ship. Subsequent release of the order of arrest on May 25, 2000 did not make the suit bad or not maintainable. (2) Since the claim was attached to the ship being a maritime claim subsequent change of ownership during the pendency of the suit did not make the suit not maintainable. (3) Alternatively, there was no lawful transfer of ownership of the vessel on or before May 2, 2000 being the date of the re-arrest and as such the plaintiff was entitled to recover their claim as against the security furnished there for. " ( 15 ) TO elaborate his submission Mr. Sarkar heavily relied on the decision in the case of Monica S reported in 1967 Lloyd's Law Report, vol-II, Page 113. Mr. Sarkar also relied on various observations of the Apex Court in the case of Liverpool and London Sp. and, I Corporation reported in 2004 (9), Supreme Court Cases, Page. 512. Mr. Sarkar also relied on my observation in the case of G. Fuel reported in 2005 (1), calcutta High Court Notes, Page 62 wherein I interpreted various clauses of the Arrest Convention, 1952 as well as 1999. Mr. Sarkar also relied on AIR 1993, Supreme Court Page 1014 (M. V. Elizabath v. Harwan Investment Pvt. Ltd. , Goa) and 1993, Vol-II, Calcutta High Court notes, Page 208 (Bailey Petroleum Co. Ltd. v. Owners and, Parties interested in the vessel M. V. Dignity formerly known as m. V. N. Marmara ). ( 16 ) MR. Mr. Sarkar also relied on AIR 1993, Supreme Court Page 1014 (M. V. Elizabath v. Harwan Investment Pvt. Ltd. , Goa) and 1993, Vol-II, Calcutta High Court notes, Page 208 (Bailey Petroleum Co. Ltd. v. Owners and, Parties interested in the vessel M. V. Dignity formerly known as m. V. N. Marmara ). ( 16 ) MR. Ahin Chowdhury, learned senior counsel appearing for MJR contended as follows :-" (1) Under section 52 of the Transfer of Property Act the principle of lis pendence can only apply in case of immovable property. (2) As per section 3 (36) of the General Clauses Act read with section 3 (55) of the Merchant Shipping Act, the ship is a floating vessel on water and could not be termed as immovable property which could attract the mischief of lis pendence. (3) By mere filing of a suit the plaintiff could not become a secured creditor unless proper writ was issued upon the ship in question. Once the order of arrest was lifted and the plaintiff categorically submitted before the Court that they would not proceed with the arrest application because of an out of Court settlement the proceeding was thereafter not liable to be continued. (4) Exhibit - J being the agreement for compromise was to be invoked within Piraeus jurisdiction and this Court had no jurisdiction to grant any relief to the plaintiff after execution of Exhibit - J. (5)Shri Amar Dutta was to be considered as plaintiffs witness unless he was declared hostile by the Court at the Instance of the plaintiff Shri Amar Dutta admitted the transfer of ownership in April, 2000 which automatically demolished the case of the plaintiff. " ( 17 ) IN support of his contention Mr. Chowdhury relied on 1993 (Supplementary-II) Supreme Court Cases, Page 433 (M. V. Elisabeth and Ors. v. Harwan Investment and Trading Pvt. Ltd. , Hanoekar House, swatontapeth, Vasco-de-Gama, Goa with M. V. Elizabeth v. M/s. Harwan Investment and Trading Co. and Anr.) and AIR 1962, Kerala, page 309 (Josna Bank Ltd. v. Asian Bank Ltd. and Ors. ). ( 18 ) MR. Tilak Bose, learned counsel appearing for the plaintiff, in reply drewmy attention to Exhibit - K dated April 24, 2000. and Anr.) and AIR 1962, Kerala, page 309 (Josna Bank Ltd. v. Asian Bank Ltd. and Ors. ). ( 18 ) MR. Tilak Bose, learned counsel appearing for the plaintiff, in reply drewmy attention to Exhibit - K dated April 24, 2000. Exhibit -M dated April 25, 2000 and Exhibit N dated April 26, 2000 to show that the transfer of ownership in fact had not taken place at least on those dates. In this regard, he relied on the deposition of Shri Amar Dutta in reply to question Nos. 35, 36, 37. 45 and 46. He further contended that Exhibit - 6 confirming the delivery as in April, 2000 was issued on December 7, 2000 being the date much after the order of re-arrest. Mr. Bose lastly, contended that in an interlocutory application this court observed that the ownership of the vessel must be proved at the time of final hearing of the suit. MJR did not produce any witness to prove the ownership of the vessel as on the relevant date and as such this Court must draw an adverse inference. ( 19 ) LET me first deal with the decision in the case of Monica S. In the said case the plaintiff cargo owners issued a writ in rem against the vessel claiming breach of contract. The writ was served on a subsequent date. The owner of the vessel appeared and took out a notice of motion to set aside the writ on the ground that there was no lien or charge on the vessel re named as Monica S as on the date of issue of the writ the ownership changed. The Court held that after the issuance of the writ and before the service could be actually effected if there was any change of ownership that would not make the action not maintainable. The notice of motion was dismissed. Mr. Sarkar relying on the said decision contended that when the suit was filed and the order of arrest was issued this Court assumed jurisdiction and the suit remain an action in rem so long the vessel was not discharged by furnishing of security as had been held in the case of M. V. Elizabeth (supra ). Mr. Chowdhury on the other hand contended that on 'the date of presentation of the suit the order of arrest was made. Mr. Chowdhury on the other hand contended that on 'the date of presentation of the suit the order of arrest was made. On that date the Court did assume jurisdiction. However, the situation changed on January 25, 2000 when the order of arrest was lifted at the instance of the plaintiff. Once the order of arrest was lifted there could not have been a further re-arrest made on May 2, 2000 when the ownership had already changed. ( 20 ) IN my view, on a combined reading of M. V. Elizabeth (supra)and Liverpool (supra) it would reveal that in an admiralty action the action is brought against the ship and the ship only meaning thereby the claim is attached to the ship. Be it maritime claim or be it maritime lien. The theory of Us pendence may not be applicable in the instant case although the result would be the same. If one looks at the arrest convention, 1952 and 1999 which are considered to be the statute in force in our country in view of the decision of M. V. Elizabeth (supra) and Liverpool (supra) in its true spirit it would reveal that in an admiralty suit claim against a ship either for supply of necessaries to her or for an accident or otherwise is brought before the Court by the claimant against the ship only as it may not be possible for the claimant to trace the owner or the charterer as the case may be. It is only when a ship is arrested by the Court of law in its admiralty jurisdiction the party claiming to the owner of the vessel comes forward to contest the proceeding and in that case court gives liberty to contest the said proceeding by furnishing of security. ( 21 ) IN the instant case the suit was brought against the ship. On the same day the ship was arrested. The order of arrest was executed. The ship remained arrested at least till January 25, 2000 when the order of arrest was lifted at the instance of the plaintiff because of out of Court settlement. Had the suit been dismissed on January 25. 2000 a fresh suit for re-arrest might not have been maintainable on May 2, 2000 in case it was found that the transfer of ownership on that date had taken place. Rightly or wrongly the suit was kept alive. Had the suit been dismissed on January 25. 2000 a fresh suit for re-arrest might not have been maintainable on May 2, 2000 in case it was found that the transfer of ownership on that date had taken place. Rightly or wrongly the suit was kept alive. Exhibit J would depict that there was no agreement with regard to the withdrawal or dismissal of the suit. The instruction issued by the plaintiff was also for lifting the order of arrest only. Hence, the suit was kept alive even on January 25, 2000 as also remain alive till the order of re-arrest was passed on May 2, 2000. If the suit was alive on May 2, 2000 when the re-arrest was made I am unable to appreciate Mr. Chowdhury's contention to the effect that the ratio decided in the case of Monica-S would not be applicable. In my considered view the ratio decided in the case of Monica-S squarely applies in the instant case. ( 22 ) LET us also examine the issue from a different angle. The order of re-arrest dated May 2, 2000 was in fact not a fresh order for re-arrest. If one looks at the prayers allowed by this Court it would appear that the order dated January 25, 2000 was recalled by the order dated May 2, 2000. When the order dated January 25, 2000 was recalled the arrest order dated January 6, 2000 was automatically revived by the Court meaning thereby the order of arrest continued till May 2, 2000 as if there was no order on January 25, 2000. ( 23 ) HENCE, I hold that the suit was maintainable on May 2, 2000 and the order of re-arrest was lawful and the plaintiff was entitled to recover their dues as against the security furnished for release of the vessel subsequent to May 2, 2000. ( 24 ) SINCE I have held that the order of re-arrest was lawful and the suit was maintainable on May 2, 2000 I need not go into the alternative issue to find out the actual date of transfer. However, since both parties argued on the said issue and tendered documents, I wish to dilate on the same. ( 25 ) MJR claimed that the ownership changed in April, 2000. The documents exhibited would not, in my view, conclusively support such fact. However, since both parties argued on the said issue and tendered documents, I wish to dilate on the same. ( 25 ) MJR claimed that the ownership changed in April, 2000. The documents exhibited would not, in my view, conclusively support such fact. In this regard I am in full agreement with Mr. Tilak Bose when he drew my attention to exhibit K, L and M. In Exhibit N I find that mjr themselves wrote to Bank of Baroda their banker at least on april 26, 2000 requesting them to make some amendments to the letter of credit. If the sale was concluded on April 15, 2000 there was no occasion for MJR to write to their banker on April 26, 2000 to amend the letter of credit. In this regard Mr. Sarkar also relied upon my Judgment and order dated May 22, 2001 in Civil Suit No. 168 of 2000 (MJR Steels Pvt. Lte. v. Fair Steel Corporation and Bank of india ). By the said decision I disposed of two interim, applications in the said suit. There it was claimed that by an agreement dated january 21, 2000 MJR agreed to purchase the vessel M. V. Nikolaos-S from Fair Steel Corporation and opened a letter of credit with Bank of Baroda. The bank was asked to amend the letter of credit on April 26, 2000. The bank, however, refused to honour the letter of credit on the ground that the vessel did not belong to Fair Steel but belonged to Third Element Enterprises. The message was received by Bank of baroda on May 2, 2000 and in turn Bank of Baroda refused to make payment to State Bank of India by its message dated May 8, 2000. The suit was filed by MJR on May 15, 2000 as against the Fair Steel and Bank of Baroda inter alia praying for a decree for recession of agreement for sale dated January 21, 2000 as also for cancellation of the said agreement. MJR also prayed for perpetual injunction restraining Fair Steel from claiming any money under the letter of credit as also restraining Bank of Baroda from making any payment. MJR also prayed for perpetual injunction restraining Fair Steel from claiming any money under the letter of credit as also restraining Bank of Baroda from making any payment. Both the applications were ultimately disposed of by me by adding state Bank of India a party in the said suit and directing Bank of india to pay the amount covered under the letter of credit to the joint Receivers to be held by them till the disposal of the suit. It now appears that the said suit was dismissed for non-prosecution on October 12, 2004. It further appears that my Judgment and order dated May 22, 2001 was appealed from by the State Bank of India and the appeal was allowed and the order of injunction initially granted by the Court restraining the Bank of Baroda from making any payment was vacated and the injunction application was dismissed by the Court of appeal. ( 26 ) IF one looks at the chronological events it would appear that there was no concluded sale even on May 2, 2000 and the MJR themselves in the suit prayed for cancellation of agreement for sale as according to them fraud was committed upon them by Fair Steel. MJR themselves allowed the said suit to be dismissed for non-prosecution on a subsequent date i. e. October 12, 2004. Be that as it may, from the chronological events as recorded above as well as from the exhibits being Exhibits K, L and N it would conclusively prove that atleast on 26th April, 2000 there was no concluded sale. The claim of the MJR on the basis of the subsequent certificate dated December 7, 2002 or a statement by Amar Dutta that the sale was effected on April 15, 2000 had no consequence. Mere delivery of the vessel to MJR on April 15, 2000 would not ipso facto prove that they became owner of the said vessel on that date. It further appears that till May 15, 2000 being the date of filing of the suit by MJR price was not paid by Bank of Baroda on behalf of MJR. Hence I hold that MJR was not the owner of the vessel on the date of re-arrest being May 2, 2000 and I reject the contention of MJR on that score. ( 27 ) IN the result, the suit succeeds. Hence I hold that MJR was not the owner of the vessel on the date of re-arrest being May 2, 2000 and I reject the contention of MJR on that score. ( 27 ) IN the result, the suit succeeds. There would be a decree as against the vessel M. V. Nikolaos-S of US$ 94,611. 25 equivalent to rs. 42,57,500. 00 in Indian currency. The plaintiff would be entitled to recover the said sum from the cash security furnished to the registrar, High Court, Original Side together with accrued interest thereon. The Registrar, Original Side, High Court, however, be entitled to deduct necessary commission applicable thereto. There would be stay of operation of the Judgment and decree for a period of two weeks from the date. Urgent xerox certified copy would be given to the parties, if applied for. Appeal allowed.