JUDGMENT :- 1. This is an application taken out by 3 members of the crew of the Vessel M.V. OSM ARENA, who are the plaintiffs in the suit, seeking appropriate directions for the maintenance of the vessel and the crew members, pending disposal of the suit on an emergent basis. 2. Heard Mr. S. Vasudevan, learned counsel for the applicants/plaintiffs, Mr. T. Poornam, learned counsel for the second respondent and Mr. J. Sivanandaraj, learned counsel for the third respondent. 3. The second respondent is a company, which has laid a claim before the Calcutta High Court against the owner of the Vessel, for recovery of the value of the Cargo which was entrusted to the Vessel and which was allegedly not delivered. The third respondent herein is a Mortgagee of the Vessel. 4. The Vessel was arrested under orders of the Calcutta High Court and under orders of this Court, in the above suit. The Vessel was also ordered to be sold by me. But in view of the pendency of a transfer petition before the Hon’ble Supreme Court, the order passed by me for the sale of the Vessel had been set aside by the Division Bench. 5. But subsequently, when the transfer petition came up before the supreme Court on 11.7.2011, the Supreme Court permitted the petitioners to approach this Court, irrespective of the pendency of the transfer petition, if there was an emergency. Therefore, this application has been filed by the crew members on two grounds viz., (i) that the crew are stranded in the sea for the past about 17 months without wages and (ii) that a company by name M/s. Seatraffic which had been making supply of necessaries to the Vessel under orders of Court, have expressed inability to continue the supplies. 6. In this application, the applicants/plaintiffs have sought directions both against the second Respondent and against the third respondent, on the ground (i) that the second respondent is responsible for the maintenance of the Vessel, in view of the fact that they have obtained the first order of arrest and (ii) that the third respondent is nothing but one of the group companies which owns the Vessel and hence if the corporate veil is lifted, the true identity of the third respondent would be exposed. On these contentions, arguments were advanced on both sides on the above application and orders were reserved by me, on 22.7.2011. 7. On the same date on which I reserved orders viz., 22.7.2011, a letter was received by the Registrar General of this Court, by fax from the Consul and First Secretary of the Embassy of the Republic of Korea. According to the letter, the counsel for the plaintiffs had addressed letters to the Senior Immigration Officer, Chennai Port Trust, the Harbour Master and the Assistant Collector of Customs, requesting them not to permit any new crew to be engaged in the place of the existing crew members without setting the dues of the existing crew. Two paragraphs of the letter sent by the Embassy require reproduction. They are reproduced as under:- “Shinhan Capital Company Ltd., has guaranteed that their wages will be paid and all necessary provisions will be supplied to the crew members would like to leave the vessel without even getting their salaries. In this regard, I would like to request to ignore the letter of the advocates mentioned above and kindly give due permission for the replacement of the crews so that the present crews of the Vessel could take rest. It would be highly appreciated if you could cooperate with us in this matter.” 8. The above letter indicated a contumacious conduct on the part of Shinhan Capital Co. Ltd., which is the owner of the first defendant-Vessel. It was clear from the letter (i) that the owner of the Vessel was making arrangements for singing off the existing crew without settling their arrears of wings (ii) that they were trying to do so without filing any proper applications before this Court and (iii) that they were using the good offices of the Embassy to achieve their ulterior purposes. It is relevant to note that the said Company has remained ex parte in the above suit. They did not appear either in responds to the notices or after orders of arrest were passed or even after an order for sale was passed. But curiously, the Shinhan Capital Co. Ltd., has been appearing before the Calcutta High Court and defending the suit filed by the second respondent herein. 9. Therefore, the attempt made by Shinhan Capital Co. They did not appear either in responds to the notices or after orders of arrest were passed or even after an order for sale was passed. But curiously, the Shinhan Capital Co. Ltd., has been appearing before the Calcutta High Court and defending the suit filed by the second respondent herein. 9. Therefore, the attempt made by Shinhan Capital Co. Ltd., to work its way through the Korean Embassy, without approaching this Court and filling an appropriate application for sending the plaintiffs back to Korea, was dubious. Hence the Korean Embassy was informed to instruct Shinhan Capital Co. Ltd., to appear before Court and move appropriate application, instead of making requests to the Registrar-General through the Embassy. 10. Immediately after a letter was sent to the Korean Embassy, requesting them to advise the owner of the Vessel to appear before this Court and move an appropriate application, the Korean Embassy sent a very curious response. The response sent by the Consul and the First Secretary of the Embassy of the Republic of Korea, on 25.7.2011, reads as follows:- “Sir, With Reference to our letter dated 22.7.2011, the said letter has been wrongly issued by mistake and we want to withdraw the said letter and want you to ignore the earlier letter dated 22.7.2011.” 11. Within two days of sending the above letter dated 25.7.2011, withdrawing their earlier letter dated 22.7.2011, the Korean Embassy has addressed a letter to the Chairman of the Port of Chennai, on 27.7.2011. The contends of the letter, are as follows:- “First of all, I would like to convey warm greetings to you. I would like to inform you that the 14 crew members of the Korean Vessel, MV OSM ARENA stationed at Chennai Port will be replaced with 14 new crew members shortly. The Agent, Hawk Logistic has been appointed to carry out the work of replacement of the existing crews with the new crews. The SHINHAN BANK in Korea has guaranteed the Embassy of the Republic of Korea in New Delhi that they will pay the wages of the new crews and also supply all the necessary provisions for the new crews until the bid process of the Vessel is finalized. The SHINHAN BANK in Korea has guaranteed the Embassy of the Republic of Korea in New Delhi that they will pay the wages of the new crews and also supply all the necessary provisions for the new crews until the bid process of the Vessel is finalized. The copies of the said letter have also been marked by the Korean Embassy to (i) Deputy Conservator, Port of Chennai (ii) Senior Immigration Officer, Port of Chennai (iii) The Assistant Collector of Customs (Preventive) Custom House, Chennai (iv) The Harbour Master, Chennai Port Trust (v) Manager, Hawk Logistics Pvt. Ltd., Chennai and (vi) SH Shipping-Myanmar. 12. While the first letter dated 22.7.2011 of the Korean Embassy indicated that Shinhan Capital Co. Ltd., had guaranteed the wages of the crew members, the last letter dated 27.7.2011 stated that Shinhan Bank which is the third respondent herein, had undertaken to guarantee the payment of the wages. Since this was in contradiction to the statement made in the first letter dated 22.7.2011 and also since the third respondent was maintaining that they are a different and distinct entity from the owner of the Vessel, I put the learned counsel for the third respondent on notice of the contents of the letter dated 27.7.2011 of the Korean Embassy. On 4.8.2011, the learned counsel took a copy of the communication dated 27.7.2011, sent by the Korean Embassy to the Chairman of the Port of Chennai and sought time to get instructions. The instructions from third respondent became essential in view of the fact that the very claim of the applicants as against the third respondent was that the third respondent was nothing but an altar ego of the owner Vessel. 13. Today, the third respondent filed a memo through their counsel. The memo has been filed without prejudice and it reads as follows:- “1. It is respectfully brought to the notice of this Hon’ble Court that Sinhan Bank has given an Undertaking to the Korean Embassy that it will pay for the Crew wages accrued until the NEW Purchaser is confirmed for the Vessel. 2. The memo has been filed without prejudice and it reads as follows:- “1. It is respectfully brought to the notice of this Hon’ble Court that Sinhan Bank has given an Undertaking to the Korean Embassy that it will pay for the Crew wages accrued until the NEW Purchaser is confirmed for the Vessel. 2. It is respectively submitted that this undertaking is been given purely on Humanitarian Grounds on concerns of the Crew Members and it is expressly submitted in unequivocal terms that this act may not be treated or seen as an admission of any sort of as Shinhan Bank’s legal liability or obligations nor as a waiver of its rights to receive distribution from Sale proceeds on a priority basis as a registered Mortgagee. 3. For the sake of clarity it is respectively submitted that Shinhah Bank as a registered Mortgagee of the vessel is under the obligations whatsoever to give the aforementioned undertaking. However, purely on Humanitarian Grounds has come forward to shoulder the responsibility and therefore has prayed that this Hon’ble Court will be please to direct that the said payment will be held as the first lien on the Sale proceeds from the Auction Sale of the vessel apart from the priority as a registered mortgagee. It is therefore prayed that this Hon’ble Court be pleased to take on record this memo and thereby render justice.” The memo represents an volte-face on the part of the third respondent. The third respondent has been maintaining that it is a distinct legal entity which cannot be made to bear the cross for the sins of the owner of the Vessel. But now they have undertaken to pay the wages of the crew. Curiously they have given this undertaking to the Embassy, instead of giving it before this court, where they have maintained a different stand. 14. Any way, it is clear from the above memo that the problem of the crew, who are now on board the Vessel, is likely to be resolved. Curiously they have given this undertaking to the Embassy, instead of giving it before this court, where they have maintained a different stand. 14. Any way, it is clear from the above memo that the problem of the crew, who are now on board the Vessel, is likely to be resolved. Though the attempt made by the Owner of the Vessel, who now remains invisible to this Court, but who keeps acting through the Korean Embassy, to replace the existing crew with a new set of victims, appears to be an unfair practice, I do not wish to stand in the way of the existing crew, who are already worn out in the high seas, without wages for the past more than 17 months, from getting repatriated with full wages. But I must certainly record my displeasure at the manner in which the owner of the Vessel is attempting to work their way through they are appearing before the Calcutta High Court. What surprise me is the readiness with which the Embassy has obliged them by writing letters to the Registry of this Court, when the matter is subjudice. 15. But be that as it may, the third respondent has now come forward to pay the entire arrears of wages to all the crew and also to arrange for their repatriation. Part of the crew are fro Korea and part of item are from Myanmar. Therefore, I am of the view that the application can be disposed of with appropriate directions. 16. I am conscious of the fact that the above application has been taken out for resolving two major issues viz., (i) the repatriation of the crew members and (ii) the continued supply of necessaries to the Vessel. But only one issue is now getting resolved. However this cannot prevent me from disposing of this application since the above application has been taken out by the crew members alone. Therefore, I am of the view that this application can be disposed of, only in so far as the crew are concerned, leaving it open to M/s. Seatraffic to file a similar application if they deem it necessary. 17. Accordingly, this application is disposed of, directing all concerned authorities, to allow all the existing crew members of the first defendant-Vessel to be signed off and a new set of crew members signed in. 17. Accordingly, this application is disposed of, directing all concerned authorities, to allow all the existing crew members of the first defendant-Vessel to be signed off and a new set of crew members signed in. But before doing so, the Senior Immigration Officer, Port of Chennai, the Harbour ensure without fail that the entire arrears of wage of all the crew members (both Korean and Myamarese) had been paid in full by the entire expense for repatriation of all the crew members to their respective countries has been borne by the third respondent. The Immigration, Harbour and Customs Officials should ensure compliance with these conditions, before permitting new crew members to be signed in. It is made clear that the payments made by third respondent shall be without prejudice to their claims. It is also made clear that the order of arrest will continue and the Vessel shall not be permitted to sail. It is open to M/s. Seatraffic to move a separate application, if they so desire. The copy of this order shall be communicated to the Port Trust and all concerned authorities including Korean Embassy.