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2005 DIGILAW 406 (GUJ)

HALK FINANSAL KIRALAMA A. S. v. M. V. LIMA I

2005-06-17

K.A.PUJ

body2005
K. A. PUJ, J. ( 1 ) THE applicant intervener, namely, M/s. Angsley Investment Limited, an interested party in defendant Vessel "m. V. LIMA-I" has filed this application for deciding preliminary issue regarding maintainability of the Admiralty Suit No. 27 of 2001. ( 2 ) IT is the case of the applicant intervener that the ship M. V. LIMA-I was harboured at Port of Calcutta, which is within the territorial jurisdiction of the Calcutta High court, at the time of passing arrest order of the Ship. It is further stated that the said Ship, M. V. LIMA-I had never come within the territorial jurisdiction of this Court. No cause of action or part of cause of action has arisen within the territorial jurisdiction of this Court as per the plaint and other documents. Under the circumstances, this Court lacks jurisdiction for passing any arrest order or passing any final decree against the Ship M. V. LIMA-I and/or its interested party. It is, therefore, prayed that on the ground of territorial jurisdiction, the Admiralty Suit No. 27 of 2001 filed by the plaintiff is required to be dismissed qua Ship M. V. LIMA-I. It is further stated that on the date of passing order of arrest and even on the date of filing admiralty suit No. 16 of 2001, ownership of Ship M. V. LIMA-I and M. V. LIMA-II were of different persons having different entities. The Ship M. V. LIMA-I belong to M/s. Jain ispat. Under the circumstances, the order of arrest M. V. LIMA-I was without jurisdiction. ( 3 ) THE opponent - original plaintiff has filed affidavit- in-reply on 25. 10. 2004 and raised several objections to the maintainability of the said application filed by the applicant intervener. It is stated therein that the said application is thoroughly misconceived and an abuse of process of law. It is further stated that the applicant intervener had earlier filed Civil Application No. 27 of 2002 in Admiralty Suit No. 27 of 2001 as an intervener and claimed to be interested in the defendant Vessel. The applicant intervener in the said application had prayed for modifying the order dated 27. 12. 2001, directing release of the Defendant Vessel on furnishing appropriate private security to the satisfaction of this Court. The plaintiff had appeared in the previous Civil Application and filed its reply dated 27. 12. 2002. The applicant intervener in the said application had prayed for modifying the order dated 27. 12. 2001, directing release of the Defendant Vessel on furnishing appropriate private security to the satisfaction of this Court. The plaintiff had appeared in the previous Civil Application and filed its reply dated 27. 12. 2002. In the said reply, the plaintiff had disputed the entitlement and the locus of the applicant intervener to make and maintain the previous Civil application. It was contended by the plaintiff in the said affidavit-in-reply that the applicant intervener has to first establish its right, title and interest in the defendant Vessel. The applicant intervener had failed to place on record any material documents or evidence and demonstrated the applicant interveners interest in the defendant Vessel. No affidavit-in-rejoinder was filed thereto. This Court by its order dated 27. 02. 2002 directed that ad interim order dated 27. 12. 2002 shall stand vacated after the Bank guarantee as aforesaid is furnished by or on behalf of the applicant intervener. On the basis of the said order, the applicant Intervener has vide note dated 21. 03. 2002 filed / furnished bank guarantee dated 19. 03. 2002. Accordingly, this Court by its order dated 22. 03. 2002 directed the Registry to issue the writ, releasing the Defendant-Vessel. It is, therefore, stated that the applicant intervener has no locus to file the present application for dismissal of the suit either on the ground of territorial jurisdiction or otherwise at all. Any application for framing a preliminary issue of jurisdiction and / or deciding the same can only be maintained by the defendant to a Suit and not an intervener i. e. the applicant intervener. The applicant intervener contesting the jurisdiction is not entitled to maintain the said application or at any rate is not entitled to maintain the said application till it establishes its interest in the defendant Vessel. ( 4 ) IT is further stated in the reply that the plaintiff is disputing the interest of the applicant in the Defendant vessel. Until the intervener (a) proves its interest in the defendant Vessel, (b) establishes its right to act for and representing the vessel and (c) an appearance for the defendant Vessel is entered, the present application cannot be entertained. It is a condition precedent that the applicant first satisfies this Court about its interest in the defendant Vessel. Until the intervener (a) proves its interest in the defendant Vessel, (b) establishes its right to act for and representing the vessel and (c) an appearance for the defendant Vessel is entered, the present application cannot be entertained. It is a condition precedent that the applicant first satisfies this Court about its interest in the defendant Vessel. This aspect of the matter is seriously disputed and this issue has been agitated before in the present suit. The present civil application is liable to be dismissed on account of the inordinate delay in taking out the present civil application. The suit was filed on december 26, 2001 and the present civil application has been taken out after a delay of almost four years, that too after having preferred the previous civil application as far back as 21. 02. 2002. There is, therefore, inordinate delay in the matter. Hence, the present application should not be entertained by this Court. ( 5 ) IT is further stated that there is no merit whatsoever to the challenge to the jurisdiction of this Court. The issue whether an Admiralty Court can arrest a vessel outside the territorial limit of the State is presently pending before the Honble Supreme Court in the case of M. V. Umang arising from a judgment and order of the Mumbai High Court. In that case, the Bombay High Court has held that there is no such bar. In any case, security having been furnished in this Court, the action now proceeds in personam and this court has jurisdiction to entertain and try the suit. ( 6 ) THE applicant intervener has filed rejoinder on 26. 11. 2004 wherein it is stated that the application filed by the applicant is in accordance with law and as per the provisions of O. 14, R. 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as c. P. C. for short), for framing preliminary issue about the territorial jurisdiction of this Court to try the suit. In the Admiralty jurisdiction, a ship is treated as a person. The object of getting order of arrest is to see that owner or interested party of ship submit to the jurisdiction of the Court. As per the law laid down by the Honble Supreme Court in the case of M. V. Elisabeth V/s. Harwan Investments and Trading inc. In the Admiralty jurisdiction, a ship is treated as a person. The object of getting order of arrest is to see that owner or interested party of ship submit to the jurisdiction of the Court. As per the law laid down by the Honble Supreme Court in the case of M. V. Elisabeth V/s. Harwan Investments and Trading inc. , Goa, A. I. R. 1993 S. C. 1014, once the owner or interested party appears then there is a suit in personam. In view of this facts, being an interested party, the applicant-intervener has entered into shoe to Defendant vessel M. V. LIMA-I and the applicant intervener is now facing the proceedings in personam. Any contrary view would amount to the effect that no decree can be passed against intervener, which is joined as defendant in the matter and though security is obtained from it. The effect would be that there will not be any decree at all against the intervener and/or ship. Being an intervener, the applicant has offered security which has been accepted by this Court in Civil Application No. 27 of 2002 vide order dated 27. 02. 2002. Hence, the intervener has entered into shoe of defendant vessel and it itself is now defendant in the suit. The applicant intervener has placed all documents of title along with written statement and hence, it cannot be stated that the applicant intervener has not established its right, title or interest in the Defendant Vessel. ( 7 ) IT is further stated in the rejoinder that delay in filing the application for framing and deciding preliminary issue about the territorial jurisdiction is not causing any prejudice to the plaintiff. No proceedings are held in between i. e. filing of the suit and the present application submitted by the intervener. The issue regarding jurisdiction of Court is a preliminary and necessary issue and it is required to be decided first. So far as the issue of delay in deciding the preliminary issue as per the provisions of O. 14, Rules 1 and 2 of C. P. C. is concerned, it has no bearing on the aspect. It is stated that in the interest of justice, instead of asking the parties to lead evidence and get decided all the issues, it is proper to decide the preliminary issue first on which the entire suit can be decided. It is stated that in the interest of justice, instead of asking the parties to lead evidence and get decided all the issues, it is proper to decide the preliminary issue first on which the entire suit can be decided. ( 8 ) IT is further stated that this Court has already decided this issue in the case of M. G. FORESTS PTE LTD. V/s. M. V. PROJECT WORKSHIP on 24. 02. 2004 in Admiralty Suit No. 14 of 2003 with Misc. Civil Application No. 187 of 2003 that a ship which is not within the territorial water of a particular High Court, order of arrest cannot be passed against it. Even otherwise, this aspect is considered by the honble Supreme Court in M. V. Elisabeths case. It is further stated that after furnishing security, the action has now become action in personam and in that situation also, as per the provisions of Section 16 to 20 of the c. P. C. , suit lies where Defendant resides or carries on its lawful business or cause of action has arisen. In the instant case, neither of the Defendants resides and it carries on business for lawful gain within the territorial jurisdiction of this Court nor cause of action has arisen within the territorial jurisdiction of this Court. It is, therefore, submitted that even if the suit is treated to be an action in personam, this Court lacks territorial jurisdiction. ( 9 ) HEARD Mr. Y. N. Ravani, learned advocate appearing for the applicant intervener and Mr. A. S. Vakil, learned advocate appearing for the opponent original plaintiff. Both the sides have filed their written submissions in great length and also furnished the copies of the relevant judgments on which they have placed their reliance. ( 10 ) SINCE Mr. Vakil has strongly objected against the maintainability of the application filed by the applicant intervener, the said objections are considered first by way of preliminary objections. Mr. Vakil has submitted that there is no order as contemplated under O. 1, R. 10 (4) of c. P. C. In O. J. C. A. No. 27 of 2002 or otherwise by which the applicant intervener has been added as defendant in the suit. In this context, he has invited the attention of the court to the cause title of the suit. The name of the applicant does not appear therein as defendant. In this context, he has invited the attention of the court to the cause title of the suit. The name of the applicant does not appear therein as defendant. Before joining the applicant intervener, the present application cannot be maintained and /or entertained at the instance of a party i. e. applicant intervener who is not a party to the suit. On this ground alone, the present application is required to be rejected. ( 11 ) MR. Vakil has further submitted that this Court will have to first decide whether the applicant intervener has any legal interest in the Defendant Vessel, before entertaining the present application. The applicant intervener has no interest whatsoever in the Defendant vessel which is now clearly established and admitted in view of the averments made in the purported written statement filed by the applicant intervener. He has further submitted that on the basis of the averments made in the written statement and the documents produced therewith, it has become clear that the applicant intervener has no interest whatsoever in the Defendant Vessel much less any interest on the date of the suit and/or the date of the civil application No. 27 of 2002. The applicant intervener had much prior to the filing of the suit i. e. 20. 07. 2001 / 27. 07. 2001 / 06. 08. 2001 / 10. 08. 2001 / sold and delivered the Defendant Vessel to the present owners, namely, M/s. Jain Udyog. The applicant, therefore, does not seem to have any interest, much less, legal interest in the Defendant vessel. The applicant intervener is, therefore, neither a necessary party nor a proper party to the suit. In this connection, Mr. Vakil relies on the decision of the Honble supreme Court in the case of (i) Deputy Commissioner, Hardoi in charge Court of Wards, Bharawan Estate, V/s. Rama Krishna narain and others, A. I. R. 1953 S. C. 521 (ii) Ramesh Hiranand kundanmal V/s. The Municipal Corporation of Greater Bombay and others, JT 1992 (2) S. C. 116 (iii) Anil Kumar Singh V/s. Shivnath Mishra @ Gadasa Guru, JT 1995 (1) S. C. 273 (iv) razia Begum V/s. Sahebzadi Anwar Begum and others, AIR 1958 supreme COURT 886 (v) Bank of Rajasthan Ltd. , Bangalore V/s. Transocean Bulk Carriers Ltd. And others, AIR 1999 MADRAS 105. ( 12 ) MR. ( 12 ) MR. Vakil has further submitted that the conduct of the applicant is also required to be seen. The said conduct would also have a bearing at the time when the Court decides to exercise its discretion vested in it under O. 14, R. 2 of c. P. C. while deciding whether to frame or not to frame the issue regarding jurisdiction as a preliminary issue, the court cannot ignore the fact that the applicant intervener had seized to have any interest whatsoever and more particularly, legal interest, in the Defendant Vessel on and from 20. 07. 2001 / 14. 08. 2001. The applicant intervener was in possession of all the documents produced along with the written statement and despite the same, when the applicant intervener filed O. J. C. A. No. 27 of 2002 in february, 2002 for vacating and/or modifying the order of arrest dated 27. 12. 2001, claiming to have interest in the defendant Vessel and also deliberately and intentionally suppressed some of the documents which would have otherwise clearly demonstrate that the applicant intervener had seized to have any interest in the Defendant Vessel. Mr. Vakil has, therefore, submitted that the applicant intervener has deliberately suppressed the said facts and the documents and thereby misled this Court in passing the order dated 27. 12. 2002 in O. J. C. A. No. 27 of 2002. In view of this conduct of the applicant, the present application is required to be dismissed. The applicant cannot be permitted to be now joined as a defendant, simply because it has furnished security. ( 13 ) MR. Vakil has further submitted that before deciding on merits the issue of jurisdiction, the Court must first decide whether the issue of jurisdiction is in fact required to be framed as a preliminary issue. Till this date, no order has been passed for the purpose of framing the issue of jurisdiction as a preliminary issue. This Court, therefore, cannot straightway proceed to decide the issue of jurisdiction on the merits without there being any order on record framing the issue of jurisdiction as a preliminary issue. Till this date, no order has been passed for the purpose of framing the issue of jurisdiction as a preliminary issue. This Court, therefore, cannot straightway proceed to decide the issue of jurisdiction on the merits without there being any order on record framing the issue of jurisdiction as a preliminary issue. In support of this submission, he has relied on the decision of this Court in the case of BHEL V/s. General contractor Company, [1996] 37 (1) G. L. R. 750 wherein the trial Court, instead of raising an issue relating to jurisdiction has decided the issue on merits. This Court has observed that it is not proper and the Trial Court should decide whether issue to be decided as a preliminary issue and if the issue is not pure question of law then the Trial court would decide all issues simultaneously. Mr. Vakil has further submitted that here in the present case, the plaintiff has seriously contested first half of the prayer made in the application. The plaintiff is contesting the framing of issue regarding jurisdiction as a preliminary issue itself. In that view of the mater, this Court will have to first decide whether the issue of jurisdiction is at all required to be framed as a preliminary issue. ( 14 ) MR. Vakil has further submitted that the issue of jurisdiction in the facts of the present case is not required to be framed as a preliminary issue. The power of this Court to decide the issue as a preliminary issue is discretionary and not mandatory. Sub-Rule (2) leaves discretion upon the Court. It is not mandatory for the Court to first decide the question of jurisdiction. O. 14, R. 2 (1) mandates a Court that notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-Rule (2) pronounce judgment on all issues. The intention of the legislature is that instead of prolonging the suit by first deciding a preliminary issue and thereafter deciding other issues, be avoided as far as possible, and all the issues are decided together, and thereby avoid unnecessary multiplicity of and prolonging of the proceedings. The intention of the legislature is that instead of prolonging the suit by first deciding a preliminary issue and thereafter deciding other issues, be avoided as far as possible, and all the issues are decided together, and thereby avoid unnecessary multiplicity of and prolonging of the proceedings. O. 14, R. 2 had been amended by the Civil law Amendment Act of 1976 and the present Rule 2 is substituted for old Rule 2 of Order 14, which confers a discretion on the Court to try any issue of law if it relates to jurisdiction of the Court and it provides that it may try such an issue as a preliminary issue. It is no longer obligatory for the Court to decide the issue of law as a preliminary issue. He has, therefore, submitted that for the purpose of exercising the discretion vested in this court under O. 14, R. 2 of C. P. C. for framing the issue of jurisdiction as a preliminary issue, the Court has to take into account the various factors, one of which being the factor of mortgage of the Defendant Vessel. In this context, he has submitted that the plaintiff claims to be the mortgagee of the Defendant Vessel. The plaintiff has made the averments in para 3 and 4 of the plaint. The said averments have been dealt with by the applicant intervener in para 10 and 11 of the written statement. A plain reading of para 10 and 11 of the written statement shows that the case of the applicant intervener, in so far as the mortgage is concerned, is of mere denial. Thus, the trial of the suit itself is not expected to be lengthy and/or elaborate. For the said reason, he has submitted that it is not desirable that the issue of jurisdiction be not framed and tried as a preliminary issue. In this connection, Mr. Thus, the trial of the suit itself is not expected to be lengthy and/or elaborate. For the said reason, he has submitted that it is not desirable that the issue of jurisdiction be not framed and tried as a preliminary issue. In this connection, Mr. Vakil has relied on the judgments in the case of (i) Lufthansa German airlines V/s. VIJ Sales Corporation, (1998) 8 S. C. C. 623 (ii) T. Ganapathia Pillai V/s. N. Somasundaram Pillai and others, A. I. R. (37) 1950 Madras 213 (iii) Surya Kant chunilal and others V/s. Mahesh Chand and others, A. I. R. 1972 DELHI 72 (iv) Mithlesh Kumari and others V/s. Gaon sabha, Kishanpur and others, AIR 1999 Allahabad 304 (v) sunni Central Waqf Board and others V/s. Gopal Singh Vishrad and others, AIR 1991 Allahabad 89 (vi) N. A. Ramkrishna V/s. K. N. Panduranga Setty and others, 2000 A I H C 4517 (vii) shishirkumar Sharadchandra Sen V/s. Bina Ashwinkumar bhaumik, 1991 (32) (1) G. L. R. 195 (viii) M/s. Dullar enterprises Pvt. Ltd. V/s. Bhagwan and another, AIR 2001 rajasthan 44 (ix) Kaushiklal Nanalal Parikh V/s. Mafatlal industries Ltd. and Ors. , 1995 (36) (1) G. L. R. 557, (x) Ramesh b. Desai and Ors. V/s. Bipin Vadilal Mehta and Ors. , 2001 (42) (2) G. L. R. 1224, (xi) Gujarat Housing Board, Baroda V/s. Navnirman Mazoor Bandhkam Sahakari Mandli Limited, 1992 (33) (1) G. L. R. 155. ( 15 ) MR. Vakil has further submitted that the present application is filed under O. 14, R. 2 of C. P. C. and it cannot be treated as an application under O. 7, R. 10 of c. P. C. In view of the provisions of O. 49, R. 3 of C. P. C. , the provisions of O. 7, R. 10 would not be applicable in the facts of the present case. In this context, he has submitted that this Court is exercising its admiralty and vice admiralty jurisdiction vested in it under Clause 32 of the letters Patent. This Court is, therefore, a chartered high court for the said purpose. ( 16 ) MR. Vakil has further submitted that the judgment of this Court in Admiralty Suit No. 14 of 2003 in the case of m. V. Project Workshop on which heavy reliance is placed by the applicant intervener does not answer the submissions made by the plaintiff. This Court is, therefore, a chartered high court for the said purpose. ( 16 ) MR. Vakil has further submitted that the judgment of this Court in Admiralty Suit No. 14 of 2003 in the case of m. V. Project Workshop on which heavy reliance is placed by the applicant intervener does not answer the submissions made by the plaintiff. Some of the issues which have arisen in the present matter do not arise at all in the case of m. V. Project Workshop. In the present case, the prayer for framing issue of jurisdiction as a preliminary issue is by a sthird party intervener", whereas in the case of M. V. Project Workshop, the prayer for framing issue of jurisdiction was by a party-defendant to the suit and not by a intervener. In the present case, the plaintiff is seriously disputing the interest of the intervener in the defendant vessel. In the case of M. V. Project Workshop, the interest of the defendant, at whose instance the issue of jurisdiction was tried as a preliminary issue, was not in dispute. In the present case, the plaintiffs submission is that this Court should not exercise its discretion for framing the issue of jurisdiction as a preliminary issue, but instead try all the issues together. In the case of M. V. Project Workshop, the parties to the suit had no objection to frame and thereafter try the issue of jurisdiction, as a preliminary issue. In the present suit, the plaintiffs claim is based on a mortgage. The written statement is already filed. There is no dispute in so far as execution of mortgage is concerned. In the case of M. V. Project Workshop, no written statement was filed. The said judgment and order dated 24. 02. 2004 is already a subject matter of appeal before the Division Bench of this Court, because the said appeal is already admitted and is pending final hearing and disposal. The said judgment and order dated 24. 02. 2004 would in the case of M. V. Project Workshop, is of no assistance to the intervener. The controversy is also pending before the honble Supreme Court. The said judgment and order dated 24. 02. 2004 would in the case of M. V. Project Workshop, is of no assistance to the intervener. The controversy is also pending before the honble Supreme Court. For the purpose of exercising discretion vested under O. 14, R. 2 of C. P. C. and also to avoid multiplicity of proceedings, this Court should also consider that the Calcutta High Court in the case of alexandros Dryron S. A. , V/s. Owners and Parties interested in the vessel M. V. SPRAPTI", AIR 1998 Calcutta 142 and the bombay High Court in the case of M. V. Umang has held that a vessel/ship lying anywhere in the territorial waters of india can be arrested. The Madras High Court and this Court have taken a contrary view. The appeal from the judgment and order of the Division Bench of the Mumbai High Court is pending before the Supreme Court and is awaiting final disposal. It is, therefore, desirable to await the decision of the Apex Court rather than frame the issue to decide the same and thereby lead to multiplicity of proceedings. Mr. Vakil has, therefore, submitted that instead of deciding preliminary issue as to whether the suit is maintainable or not, this Court should first decide on the basis of the submissions made as to whether the present application moved by the applicant intervener is maintainable and even if it is maintainable, whether this Court should frame the issue of jurisdiction as a preliminary issue or it should await the decision of the Apex Court and thereby avoid multiplicity of proceedings. ( 17 ) MR. Y. N. Ravani, learned advocate appearing for the applicant intervener has submitted that there is no dispute about the fact that the vessel in question has never entered into the territorial jurisdiction of this Court. As far as admiralty suit is concerned, it is a suit Sin rem" wherein the ship is treated as defendant and summons is issued to the persons interested and/or owner of the ship. On appearance of the interested parties, he enters the shoe of defendant i. e. Vessel. The interested party itself is treated as defendant. The provisions of O. 1, R. 10 of C. PC. Which are pertaining to the suit in personam do not apply to the suit which is suit in rem. On appearance of the interested parties, he enters the shoe of defendant i. e. Vessel. The interested party itself is treated as defendant. The provisions of O. 1, R. 10 of C. PC. Which are pertaining to the suit in personam do not apply to the suit which is suit in rem. He has, therefore, submitted that the entire concept shown by the plaintiff about the suit in personam and necessary and proper party does not apply to the Admiralty Suit. This aspect has been considered by the Honble Supreme Court in the case of M. V. Elizabeth wherein it is shown that when there is an action in rem, the owner or any one interested in the proceedings may appear and defend. The writ is issued to Sowner and parties interested in the proceedings proceeded against". It is totally irrelevant to raise a question regarding necessary and proper party in the suit, in the facts and circumstances of the case. Even at the time of deciding issue of territorial jurisdiction, it has no bearing in the case, more particularly, when admittedly other owner and/or other interested party in the ship M. V. LIMA-I or ship itself is not alleged to be within territorial jurisdiction of this court ( 18 ) MR. Ravani has further submitted that so far as OJCA no. 27 of 2002 is concerned, it is wrongly stated to have been pending in written submission by the plaintiff. It is disposed of. The order passed in OJCA No. 27 of 2002 has remained unchallenged and uncontroverted. Even otherwise, after acceptance of security, to deny the applicant intervener to defend the suit on merits is against the provisions of law and against the principles of equity. Mr. Ravani has further submitted that whether the applicant intervener has any legal interest in the defendant vessel is not the issue to be decided at this stage or at the stage of deciding the issue of territorial jurisdiction of this court. From the documents, it is very clear that the applicant intervener was the owner of the ship and it has sold the same to M/s. Jain Udyog, which is sold without any encumbrance, charge or any lien thereon. Even serious steps are initiated by M/s. Jain Udyog against the applicant intervener. From the documents, it is very clear that the applicant intervener was the owner of the ship and it has sold the same to M/s. Jain Udyog, which is sold without any encumbrance, charge or any lien thereon. Even serious steps are initiated by M/s. Jain Udyog against the applicant intervener. Hence, it is not correct that the applicant is not having any interest in the ship to make it free from encumbrance, for the property of M/s. Jain Udyog. The applicant intervener is an interested party in the vessel and it is rightly permitted to furnish security by this court and the order has remained unchallenged before the higher Forum. The controversy is set at rest. Even otherwise, all these aspects are totally irrelevant and raised only with a view to mislead this Court to irrelevant aspects of the matter. In fact, all these aspects have no bearing on the aspect in question more particularly, when territorial jurisdiction is required to be decided by this court. ( 19 ) MR. Ravani has further submitted that no material facts whatsoever were suppressed while filing OJCA No. 27 of 2002. This Court has decided the same and that order is not challenged before any higher forum. There is no separate proceeding prescribed for joining intervener as defendant. The moment intervener appears in the suit, which is a suit in rem, he is treated as defendant and he enters the shoe of the defendant. Therefore, it is incorrect to state that the applicant intervener does not require to be treated as party defendant. The plaintiff has failed in showing any separate procedure, if any, prescribed to get the intervener joined as party defendant to the suit. At least no procedure is prescribed or in vogue. He has, therefore, submitted that raising of such technical issues after obtaining security from the applicant intervener is frivolous and irrelevant and the same is required to be rejected by this Court. ( 20 ) MR. Ravani has further submitted that present application is filed for framing preliminary issue about the territorial jurisdiction and against that, the plaintiff has filed the reply and the applicant intervener has filed rejoinder. So, it is not the case of suppression or non- affording of opportunity to the other side. ( 20 ) MR. Ravani has further submitted that present application is filed for framing preliminary issue about the territorial jurisdiction and against that, the plaintiff has filed the reply and the applicant intervener has filed rejoinder. So, it is not the case of suppression or non- affording of opportunity to the other side. The plaintiff is given enough opportunity to show that why the plaint should not be returned on the ground of territorial jurisdiction. It is settled law that framing of preliminary issue and deciding the same can be done simultaneously as sufficient opportunity of hearing is given and there is no such bar under the law i. e. under C. P. C. In the cases cited by the plaintiff, there were totally different facts wherein without deciding the aspect of framing preliminary issue, the Court had rejected the same without assigning any proper reason. He has further submitted that it is a hardship of the party to get the suit tried on all the issues and then to get the result on the aspect of territorial jurisdiction. Therefore, considering the aspect of hardship of the parties, it is now settled law that when there is question of territorial jurisdiction, the same should be treated as preliminary issue and decided first. After trial, if it is decided that this Court has no jurisdiction, it would cause hardship to the parties more particularly, it would cause more hardship to the defendant as huge security is given by it. Mr. Ravani has relied on the law laid down by the Kerala high Court in the case of M/s. Femina Handloom of India V/s. M. R. Verma, A. I. R. 1993 Kerala 210. ( 21 ) MR. Ravani has further submitted that filing of application for deciding the issue of territorial jurisdiction first at this stage, does not create any prejudice to the plaintiff. In between time, no interest is created in favour of the plaintiff and no equity is created in favour of any of the parties. On the ground of delay, the application cannot be thrown away more particularly, when on facts, nothing is shown that the territorial jurisdiction is vested in this Court. ( 22 ) MR. In between time, no interest is created in favour of the plaintiff and no equity is created in favour of any of the parties. On the ground of delay, the application cannot be thrown away more particularly, when on facts, nothing is shown that the territorial jurisdiction is vested in this Court. ( 22 ) MR. Ravani has further submitted that it is now settled that in view of the provisions of O. 49, R. 3 of C. P. C. , though the provisions of O. 7, R. 10 do not apply, the suit is either required to be dismissed or plaint is required to be returned while exercising the inherent jurisdiction of this court. He has further submitted that in the case of Manaklal v/s. Mohanlal, A. I. R. 1963 Bombay 94, in respect of the suit of mortgaged property outside the Bombay, it was held that the suit was not maintainable and the Court dismissed the suit and further held, that the plaint is not required to be returned to the plaintiff for the presentation to the proper court. In the case of O Connor V/s. Sampat Kumar, A. I. R. 1953 Madrs 897, it was held by the Madras High Court that the plaint may be returned for presentation before the appropriate Court in exercise of its inherent jurisdiction. With regard to Section 120 of C. P. C. , there are two folds submissions made by Mr. Ravani. Firstly for deciding the jurisdiction of the three chartered High Courts of Calcutta, bombay and Madras, in exercise of its original jurisdiction, it is regulated by Clause 12 of the Letters Patent. Even if clause 12 is considered, the suit is not maintainable for the reasons that neither immovable property is situated within territorial jurisdiction of this Court nor cause of action has arisen either wholly or partly nor leave of the court is first obtained nor defendant resides within the limit of original jurisdiction of this Court. Therefore, as per Clause 12 of the Letters Patent also, this Court has no jurisdiction. Therefore, as per Clause 12 of the Letters Patent also, this Court has no jurisdiction. The second submission is that amendment introduced in the heading of Part 9, and Section 116 of c. P. C. By Section 14 of C. P. C. (Amendment) Act, 1951 has result of excluding applications of Section 16, 17 and 20 of the three High Courts, i. e. Calcutta, Bombay and Madras were the only High Courts at the relevant time. The amendment of 1951 has never contemplated to cover other High Courts. Hence, Section 120 of the C. P. C. does not apply to the High courts established after 1951s amendment. In view of this fact also, the provisions of Section 16, 17 and 20 would apply to the other High Courts in exercise of their original civil jurisdiction. ( 23 ) MR. Ravani has further submitted that even otherwise, in view of the provisions of Clause 12 of the Letters Patent clause also, the plaintiff has failed in showing territorial jurisdiction. Provisions of O. 49, R. 3 of C. P. C. only exclude provisions of O. 7, R. 10. That does not confer any territorial jurisdiction to this Court to try the present suit wherein cause of action partly or wholly has not arisen within its territorial jurisdiction nor defendant carries on its business gainfully nor resides within the jurisdiction of this Court. As far as judgment of this Court in the case of M. V. Project Workshop (Supra) is concerned, Mr. Ravani has submitted that the issues mentioned by the plaintiff are totally irrelevant. There is no distinction between the intervener and the defendant. Later on once intervener appears and gives security and the same is accepted by the court, the intervener is to be treated as defendant and enters the shoe of the vessel itself. The pendency of suit before the Appellate Court has no bearing at all. Mr. Ravani has, therefore, submitted that the suit of the plaintiff is required to be dismissed on the ground of lack of jurisdiction of this Court. Otherwise, it would amount to trying the suit for which this Court has no jurisdiction. The pendency of suit before the Appellate Court has no bearing at all. Mr. Ravani has, therefore, submitted that the suit of the plaintiff is required to be dismissed on the ground of lack of jurisdiction of this Court. Otherwise, it would amount to trying the suit for which this Court has no jurisdiction. ( 24 ) AFTER having heard learned advocates appearing for the respective parties and after having gone through their respective pleadings and submissions, oral as well as in writing, and after having gone through the authorities cited by the learned advocates on behalf of their respective clients, the Court is of the view that the issue is squarely covered by the decision of this Court in the case of M. V. Project Workshop decided on 24. 02. 2004. After elaborate discussion of the respective provisions and considering the case law on the subject, this Court has taken the view that if the overall scheme of Indian Penal Code (Section 4), Code of Criminal Procedure (Section 188), The Merchant Shipping act (Section 437) and the Territorial Waters Act (Section 13) are taken into consideration read with Section 2 (2) and section 3 (15) of the Merchant Shipping Act, it is apparent that for a Court, including High Court, to be vested with jurisdiction, an offender or offending vessel have to be found within local territorial limits of such Court. The court has further held that taking a clue from this legal position which emerges on a conjoint reading of various provisions providing for different contingencies, it is apparent that for the purpose of exercise of admiralty jurisdiction in civil dispute, the High Court cannot claim unbridled jurisdiction keeping in mind the constitutional provisions. The Court has, therefore, held that on the ground of jurisdiction, the case of the plaintiff must fail. The Defendant Vessel is right in contending that the Court has no jurisdiction in law to order arrest of the vessel. The distinguishable factors pointed out by Mr. Vakil in the case of M. V. Project Workshop and the present case are not in any way affecting the applicability of the ratio of the said judgment to the facts of the present case. The distinguishable factors pointed out by Mr. Vakil in the case of M. V. Project Workshop and the present case are not in any way affecting the applicability of the ratio of the said judgment to the facts of the present case. Once the applicant has appeared as an intervener, offered security and the same has been accepted by the Court, it is too much to contend thereafter that the applicant has no vested interest or no locus in defending the said suit. Whether the court is having a jurisdiction or not is a pure question of law and if the Court is not having jurisdiction, the parties cannot confer the said jurisdiction on the Court. It is not required to frame the issue as to whether the issue regarding territorial jurisdiction is a preliminary issue and after framing that issue, the same can be decided. The framing of issue and the decision thereon can even be done simultaneously. Here in the present case, the application is moved. Affidavit-in-reply is filed by the original plaintiff and rejoinder affidavit is also filed by the applicant intervener. Written submissions in great detail were also filed by the parties. Virtually, entire pleading is over and hence, the Court is left with the only question to decide the maintainability of the Admiralty suit especially when the Defendant Vessel has not entered into the territorial jurisdiction of this Court. The Court is, therefore, of the view that this Court has no jurisdiction to entertain the present suit and the plaint is required to be returned to the plaintiff for presentation before the Competent Court. This Court further makes it clear that during the pendency of the aforesaid application, the original plaintiff has moved Civil Application No. 65 of 2005 and while disposing of the said Civil Application on 29. 03. 2005, the Court has granted the prayer made in the said application to the extent that the applicant / original plaintiff was permitted to substitute the undertaking dated 27. 12. 2001 with the undertaking of Shri Yogesh Bhatt or any other constituted attorney of the plaintiff being Indian citizen, who is amenable to the jurisdiction of this Court, on the same terms and conditions as contained in the undertaking dated 27. 12. 2001. 12. 2001 with the undertaking of Shri Yogesh Bhatt or any other constituted attorney of the plaintiff being Indian citizen, who is amenable to the jurisdiction of this Court, on the same terms and conditions as contained in the undertaking dated 27. 12. 2001. It is further made clear that pursuant to this order, the plaint is required to be returned to the plaintiff and the plaintiff shall present it before the competent Court along with all other documents within two weeks from the date of receipt of the writ of this Court or from the date of receipt of the certified copy, whichever is earlier. ( 25 ) WITH the aforesaid directions and observations, the present application is accordingly disposed of as allowed to the above extent, without any order as to costs. ( 26 ) SINCE the Court takes the view that this Court has no jurisdiction to entertain, try and decide the suit, the registry is directed to delist this Suit and all applications arising therefrom and return the plaint of the suit and of all other papers of the proceedings relating to the said suit, for presenting them before the appropriate court. ( 27 ) AFTER this judgment is pronounced, Mr. Darshan Parikh, learned advocate appearing for Mr. A. S. Vakil, learned advocate appearing for the original plaintiff has made the request to stay the implementation of this order for a period of two weeks so as to enable the plaintiff to approach the higher forum, if the plaintiff so desires. Mr. Y. N. Ravani, learned advocate appearing for the applicant intervener has, however, objected to the said request as the Court has already granted time for two weeks for presentation of the plaint before the appropriate Court. Considering the submissions of the parties, the Court hereby grants time of one week during which period the order passed today is stayed. ( 28 ) AT the request of Mr. A. S. Vakil, learned advocate appearing for the respondent original plaintiff, the papers of OJCA No. 84 of 2004 in Admiralty Suit No. 27 of 2001 in which the Court has passed the order on 17. 06. 2005 are called for. ( 28 ) AT the request of Mr. A. S. Vakil, learned advocate appearing for the respondent original plaintiff, the papers of OJCA No. 84 of 2004 in Admiralty Suit No. 27 of 2001 in which the Court has passed the order on 17. 06. 2005 are called for. The Court has allowed the said application and directed the original plaintiff to present the plaint of the Admiralty Suit No. 27 of 2001 before the appropriate Court within two weeks from the date of the order. The Court has, however, granted stay against the implementation of the order for one week from the date of the order. Mr. Vakil has submitted that the order is not transferred in the computer and hence, he could not obtain the copy of the order. He has, therefore, prayed to extend the time for 10 days more. Mr. Y. N. Ravani, learned advocate appearing for the applicant intervener could not be contacted by Mr. Vakil. However, he has assured that he will intimate to him about this order. ( 29 ) CONSIDERING the genuine difficulty faced by Mr. Vakil, the stay against the implementation of the order dated 17. 06. 2005 granted earlier on the same day for a period of one week is extended upto 04. 07. 2005. .