Judgment : 1. By the above Notice of Motion, the Applicant (Original Defendant No.2) has sought dismissal of Admiralty Suit No.76 of 2011 on the ground that the Plaintiff has suppressed the relevant facts from this Court as well as the Defendant Nos.1 and 2 and has obtained an ex-parte order of arrest on 27th September 2011. By the above Notice of Motion, the Applicant has also sought an order and direction to the Prothonotary and Senior Master of this Court to return the security of Rs.4,91,54,500/- to the Applicant – Original Defendant No.2 – with accrued interest till the date of payment and realization. 2. The facts in the matter are briefly set out hereunder: 3. The Defendant No.1 vessel m. v. XING XIANG AN was chartered by Defendant No.2 Shanghai Yang Pu Zhe Hai Shipping Co. Ltd./its Associate Company M/s. Yang Pu Zhe Hai Shipping Co. Ltd. (referred to as ‘HK Co’), to Defendant No.3 Hong Kong Chain Glory Shipping Limited for 23-25 months +/15 days. Accordingly, the charter was to come to an end on 15th November 2011. Clause 18 of the Contract permitted Defendant No.3 to sublet the vessel for the entire or any part of the time period covered by the charter. On 21st December 2009, the Defendant No.1 vessel was chartered by Defendant No.3 to the Plaintiff for a minimum of 20 months extended up to 21 months +/15 days. Accordingly the charter was to come to an end on 15th October 2011. 4. According to the Plaintiff, by 24th May 2011, 35 hire installments were paid by the Plaintiff to Defendant No. 3, covering the period 30th December 2009 to 8th June 2011 after various off-hire and other deductions as evidenced by the Statement of Account dated 24th May 2011. However on 1st June 2011, with 137 days remaining, the Defendant No.2 withdrew the Defendant No.1 vessel which was chartered to Defendant No. 3. Thereupon, Defendant No. 3 withdrew the Defendant No. 1 vessel chartered by Defendant No. 3 to the Plaintiff. On 27th September 2011, the Plaintiff filed a Suit before this Court claiming a decree jointly and severally against the Defendants and an order of arrest of the Defendant No.1 vessel was granted. 5. Thereupon, Defendant No. 3 withdrew the Defendant No. 1 vessel chartered by Defendant No. 3 to the Plaintiff. On 27th September 2011, the Plaintiff filed a Suit before this Court claiming a decree jointly and severally against the Defendants and an order of arrest of the Defendant No.1 vessel was granted. 5. On 8th May 2011, the Defendant Nos.1 and 2 took out Notice of Motion No.3030 of 2011 for the following reliefs: (a) that the Admiralty Suit be dismissed against Defendant Nos.1 and 2 with exemplary costs; (b) the order of arrest be vacated and/or set aside. In respect of the Notice of Motion, it was contended by the Defendant No.2 that there was no privity of contract between the Plaintiff and the Defendant No.2 and the vessel was not withdrawn from charter by the Defendant No.2 and the Suit should be dismissed. In paragraph 28 of the Affidavit in support of the Notice of Motion, the Defendant No.2 also referred to the Arbitration Agreement between the Plaintiff and Defendant No.3. 6. On 19th October 2011, the Notice of Motion of the Defendant No.2 was dismissed and the learned Single Judge held that “further the charter-party provisions regarding the withdrawal of the vessel and its impact on the claim of the Plaintiff as against Defendant Nos.2 and 3 is something which can be conclusively decided after the parties produce the necessary evidence.” The learned Single Judge further held that “if cognizance is to be taken of the statements made in the affidavit in support of the Notice of Motion, that would entail holding of a trial; that is not permissible at this stage.” 7. Defendant Nos.1 and 2 preferred an Appeal from the said Order passed by the learned Single Judge dated 19th October 2011. However, the Appeal filed by Defendant Nos.1 and 2 was dismissed by an Order of the Hon’ble Division Bench dated 8th December 2011. 8. Defendant Nos.1 and 2 preferred a SLP against the order passed by the Hon’ble Division Bench dated 8th December 2011. However, the said SLP was dismissed by an Order dated 6th February 2011, with a request to the High Court to dispose of the Suit as expeditiously as possible and in any event, within three months i.e. on or before 5th May, 2011. 9. However, Defendant No.2 filed its Written Statement only on 16th April 2012. However, the said SLP was dismissed by an Order dated 6th February 2011, with a request to the High Court to dispose of the Suit as expeditiously as possible and in any event, within three months i.e. on or before 5th May, 2011. 9. However, Defendant No.2 filed its Written Statement only on 16th April 2012. The Defendant No.3 filed its Written Statement on 27th August 2012. In August 2012, the Plaintiff submitted draft Issues. The Defendant No.2 amended its Written Statement on 10th October 2012 and also filed an additional Written Statement on 30th November 2012. 10. On 12th December 2012, the Defendant No.2 took out the present Notice of Motion on the following grounds set out in paragraph 3 of the Affidavit-in-support of the Notice of Motion : “The plaintiff had suppressed that the Defendant No.3 had in fact withdrawn the vessel from the sub-charter with the Plaintiff in view of the Plaintiff’s failure to make full payment of charter hire outstanding. The Plaintiff has also suppressed that months before filing the present suit, it had initiated arbitration proceedings against Defendant No.3 for the same claimed amount and that a Tribunal had also been constituted.” According to the Defendant No.2, the plaint is filed by the Plaintiff only on the basis that the Defendant No. 1 vessel was withdrawn by Defendant No.3 from the charter with the Plaintiff, only consequent to the withdrawal of the vessel by Defendant No.2. This constituted a breach of contract by Defendant No.2 which breach caused loss and damage to the Plaintiff which the Plaintiff is entitled to recover jointly or severally from the Defendant Nos.2 and 3. 11. It is therefore submitted on behalf of Defendant No.2 that the Plaintiff did not make any mention in the Plaint that owing to the Plaintiff not paying the hire charges as called upon by the Defendant No.3, by its correspondence annexed at Exhibits ‘B’ and ‘C’ to the Written Statement of Defendant No.3, the Defendant No.1 vessel was withdrawn by Defendant No.3 from the Plaintiff. In fact, arbitration proceedings have commenced between the Plaintiff and Defendant No.3 under the Arbitration Agreement contained in the contract executed between the Plaintiff and the Defendant No.3. In fact, arbitration proceedings have commenced between the Plaintiff and Defendant No.3 under the Arbitration Agreement contained in the contract executed between the Plaintiff and the Defendant No.3. It is submitted that if the Plaintiff would have disclosed the facts contained in the correspondence set out hereinabove, which is now disclosed by Defendant No.3 in its Written Statement, the Plaintiff not would have been granted any ex-parte relief, which relief has been obtained by the Plaintiff by suppressing the said facts and only by contending before the Court that due to the wrong and illegal withdrawal of the vessel by the Defendant No.2 from the Defendant No.3, the Defendant No.3 consequently withdrew the Defendant No.1 vessel from the Plaintiff thereby causing loss and damage to the Plaintiff. It is submitted on behalf of Defendant No.2 that the Plaintiff therefore intentionally served the Writ of Summons on Defendant No.3 only on 27th February 2012 and not earlier. It is submitted on behalf of the Defendant No.2 that in view of such gross suppression of facts viz. that the Plaintiff had not paid all the dues towards hire payment to Defendant No.3 and had wrongly deducted huge amounts from the amounts due and payable to Defendant No.3, Defendant No.3 had issued notices including a lien notice in respect of the sums due, and also threatened action under Clause 11 of the Time Charter by serving a notice of withdrawal on the Plaintiff, the Suit filed by the Plaintiff deserves to be dismissed and Defendant Nos.1 and 2 are entitled to return of the security amounts deposited by them with the Prothonotary and Senior Master of this Court. 12. The Defendants submit that it is well settled that: i) ‘the applicant must state fully and fairly the facts’ and that if ‘any material facts has been suppressed or not properly brought forward’ the order made earlier will be vacated and the litigant who has failed to disclose material facts ‘loses his remedy’; and that the Court should dismiss the Application without going into the merits and even though there might otherwise be material for granting relief : The King vs The General Commissioners For the Purpose of the Income Tax Acts for the District of Kensington’ (1917) 1 KB 486). ii) In the case of ChengalvarayaNaidu vs Jaganath (1994) 1 SCC 1 , the Supreme Court specifically overruled as ‘patent error’ and ‘perverse’, the judgment of the Andhra Pradesh High Court holding that this obligation of full and complete disclosure of facts was limited only to Probate and other proceedings where a duty was cast upon a litigant to disclose all facts and was not applicable to ordinary adversarial civil litigation. The Supreme Court held that a person whose case was based on falsehood had no right to approach the Court and ‘can be summarily thrown out at any stage of the litigation.’ iii) Relying on the above two judgments, this Court has dismissed a Company Petition where there was suppression of material facts. This Court has held that it is the duty of a party seeking relief “to bring to the notice of the Court all material facts” and “to make the fullest possible disclosure of all material facts within his knowledge”. “It is no excuse for the party to say that he / she was not aware of the importance of the facts which he / she has omitted to bring forward” and that if facts were suppressed / withheld, “the Court would be left with no option but to dismiss the application without going into the merits.” Agarwal Industries vs. Golden Oil Industries P Ltd (1990) Vol. 101)2) Bom L R 476). iv) In the case of The AA V [2000] 1 SLR 207 at 201/220, the High Court of Singapore has held that ‘when an ex parte application is made for the arrest of the vessel, the affidavit leading the warrant of arrest must disclose all material facts known to the deponent in relation to the arrest’ .. .. ‘The deponent of the affidavit must disclose those facts that are relevant to the making of the decision whether or not a warrant for arrest should be issued, that is a fact which should properly be taken into consideration by the Court when weighing all the circumstances of the case, though disclosure of the fact might not have the effect of leading to a different decision being made’ AND that if material & relevant facts were not duly disclosed, the warrant of arrest should be set aside on that ground. v) In Dalip Singh v. State of U.P. & Ors (2010) 2 SCC 114 , the Supreme Court stated ‘In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.’ It is therefore submitted on behalf of Defendant No. 2 that the above Notice of Motion be allowed. 13. The Plaintiff submitted that the assertion that the vessel has been withdrawn by Defendant No.3 on the ground of non-payment of hire charges is legally and factually incorrect. The Defendant No.3 has not withdrawn the vessel from charter to the Plaintiff. The Plaintiff reiterates that the Defendant No.2 withdrew the vessel from charter on 1st June 2011 and as a direct consequence of this withdrawal, the vessel also stood withdrawn from the Plaintiff’s charter party with Defendant No.3. It is submitted that this is, in fact, supported by the very correspondence that the Applicant seeks to rely upon. It is therefore submitted that the submission that the withdrawal of the Defendant No.1 vessel by the Defendant No.3 from charter on account of the Plaintiff’s failure to make full payment of charter hire is incorrect. It is further submitted on behalf of the Plaintiff that the Plaintiff had paid almost US$ 5.5 million towards charter hire to the Defendant No.3. From the various hire payments, it is apparent that there have been payments where certain off-hire deductions have been made by the Plaintiff and accepted by Defendant No.3. Thus, it is not necessary that full hire payments should be paid for the period if there are off-hire events which require hire to be reduced, and on no occasion did Defendant No.3 withdraw the vessel from charter on account of off-hire deductions made by the Plaintiff. Thus, it is not necessary that full hire payments should be paid for the period if there are off-hire events which require hire to be reduced, and on no occasion did Defendant No.3 withdraw the vessel from charter on account of off-hire deductions made by the Plaintiff. If the Plaintiff had paid over US$ 5.5 million as hire over the period, there was no earthly reason for it not to pay a small amount of US$ 55149.00 which is the alleged shortfall (as per the purported undated and unsigned withdrawal notice), and risk withdrawal of the vessel from charter. Likewise, Defendant No.3 had paid over US$ 5 million to the owners, Defendant No.2 (the Applicant), for the period that the vessel was on charter to Defendant No.3, as evident from the charter hire rate of US$ 8,800.00 per day as stated in the charter-party in Clause 9. It is simply not justifiable that Defendant No.2 was entitled to withdraw the vessel for non-payment of a paltry amount of US$ 13,000.00 as it appears from the email dated 31st May 2011 addressed by Defendant No.2 to Defendant No.3. The withdrawal by the Applicant/ Defendant No.2 appears ex-facie wrongful and illegal and was done with a view to take benefit of higher charter rates that Defendant No.2 would have earned by hiring the vessel to a third party. This becomes even more apparent when it is clear from the correspondence that Defendant No.3 in fact offered to pay the shortfall to Defendant No.2, who did not accept the same. 14. As regards the contention taken by the Applicant that the Plaintiff did not disclose that it had invoked arbitration against Defendant No.3, it is submitted on behalf of the Plaintiff that this is irrelevant and has no bearing on the Plaintiff’s claim against Defendant No.2. The charter-party between the Plaintiff and Defendant No.3, which contains the arbitration clause, is on record and filed along with the Plaint. The Applicant took out an earlier Notice of Motion No.3030 of 2011, on 8th October 2011 for dismissal of the Suit and vacating the arrest and in fact referred to the arbitration clause in the charterparty in paragraph 18 of its Affidavit-in-support of the Notice of Motion. The Applicant took out an earlier Notice of Motion No.3030 of 2011, on 8th October 2011 for dismissal of the Suit and vacating the arrest and in fact referred to the arbitration clause in the charterparty in paragraph 18 of its Affidavit-in-support of the Notice of Motion. Thus, the Applicant was aware all along of the charter-party arbitration clause and made no issue or grievance about the same as this was clearly irrelevant as far as they were concerned. 15. The Plaintiff submitted that in the course of oral submissions, it was contended on behalf of the Applicant that the Plaintiff took no steps to serve Defendant No.3 until after the order of the Hon’ble Supreme Court dated 6th February 2012. He submitted that this cannot be a ground on which the Plaintiff’s Suit is required to be dismissed against Defendant Nos.1 and 2. The Plaintiff did not take immediate steps to serve the Writ of Summons on Defendant No.3 because no interim relief was sought against Defendant No.3. However, it is pertinent to note that the Applicant took no objection to non-service on Defendant No.3 at any stage during the hearing of the previous Notice of Motion No.3030 of 2011, before the Single Judge or at the hearing of the Appeal before the Hon’ble Division Bench or in the SLP filed by the Applicant. The Applicant cannot therefore make any grievance about the same at this stage. The reason why the Plaintiff took expeditious steps to serve Defendant No.3 after the order of the Hon’ble Supreme Court dated 6th February 2012 is because the Hon’ble Supreme Court expedited the hearing of the Suit to be disposed of in three months. Consequently, it became imperative for the Plaintiff to serve Defendant No.3, which the Plaintiff did in March 2012. 16. The learned Senior Advocate appearing for the Plaintiff has submitted that since the Plaintiff has not made any false submissions or suppressed any material facts, the question of discharge of any ex-parte order does not arise. It is therefore submitted on behalf of the Plaintiff that the present Notice of Motion is taken out by the Defendant No.2 with a view to scuttling the trial because Defendant No.2 has no defence on merits and is seeking to clutch at straws with a view to avoid trial and liability. It is therefore submitted on behalf of the Plaintiff that the present Notice of Motion is taken out by the Defendant No.2 with a view to scuttling the trial because Defendant No.2 has no defence on merits and is seeking to clutch at straws with a view to avoid trial and liability. It is therefore submitted that the Notice of Motion be dismissed with costs. 17. I have considered the submissions advanced on behalf of the parties and the case law cited on behalf of Defendant No.2. The Plaintiff has filed the present Suit on the basis that the Defendant No.2 owner has wrongly and illegally withdrawn the Defendant No.1 vessel from Defendant No.3 and as a direct consequence of the said withdrawal, Defendant No.3 has withdrawn the Defendant No.1 vessel from the Plaintiff thereby causing loss and damage to the Plaintiff, which the Plaintiff is entitled to recover jointly and severally from Defendant Nos.1 and 2 and Defendant No.3. It is now the case of Defendant No.2 that the documents annexed to the Written Statement by the Defendant No.3 show that Defendant No.3 withdrew the Defendant No.1 vessel from the Plaintiff not because the said vessel was withdrawn from Defendant No.3 by Defendant No.2 but because the Plaintiff deducted huge amounts from the hire payments payable to Defendant No.3 and failed to pay the same even after receiving the withdrawal notice from Defendant No.3. It is submitted on behalf of Defendant No.2 that these facts, as well as documents, are suppressed by the Plaintiff in the Plaint. Instead, the Plaintiff proceeded on an incorrect premise that the Defendant No.1 vessel was withdrawn by Defendant No.3 from the Plaintiff as a direct consequence of the wrong and illegal withdrawal of the Defendant No.1 vessel by Defendant No.2 from Defendant No.3 and thereby wrongly obtained ex-parte orders from this Court. It is therefore necessary to go through the documents relied upon by Defendant No.3, annexed to its Written Statement and relied upon by the Applicant in the present Notice of Motion. It is therefore necessary to go through the documents relied upon by Defendant No.3, annexed to its Written Statement and relied upon by the Applicant in the present Notice of Motion. The Applicant relied upon a letter dated 1st June 2011 (Exhibit ‘B’ to the Written Statement of Defendant No.3) written by Holman Fenwick Willan, Solicitors of Defendant No.3, wherein Defendant No.3 demanded the outstanding additional cost of USD 62,078 before 2nd June 2011, failing which it would take appropriate steps to protect its interest including, but not limited to, exercising a lien against the cargo as per Clause 23 of the charterparty. By the said letter, Defendant No.3 did not withdraw the vessel from the charter with the Plaintiff. In fact, Defendant No.3 simply stated that it would exercise a lien against the cargo mentioned in the charter-party which, in fact, as submitted by the Plaintiff, means that they would maintain the charter. The annexure to the said letter dated 1st June 2011 is an undated and unsigned purported notice issued by Defendant No.3 to the Plaintiff in accordance with Clause 11 of the charter-party where the charterers were requested to rectify the failure and pay the outstanding hire within a period of three clear banking/working days failing which it threatened to exercise its contractual rights under Clause 11 of the charter-party by withdrawing the vessel from the charterers. According to the Plaintiff, not only has the said vessel not been withdrawn by/under the said notice, but the said notice is also undated and unsigned and is not received by the Plaintiff from Defendant No.3. 18. The next document that the Applicant relied upon is the letter dated 7th June 2011, from Holman Fenwick Willan, Solicitors for Defendant No.3, to the Plaintiff. As submitted by the Plaintiff, this letter prima-facie supports the Plaintiff’s case in paragraph 9 of the Plaint because Defendant No.3, in paragraph 5 of its letter has stated that, “.... since the Head Owners withdraw the Vessel from the service to our clients, our clients must likewise do so under the C/P with you.” The Plaintiff has correctly submitted that by the time this letter was addressed on 7th June 2011, the vessel had already been withdrawn by Defendant No.2 from charter from Defendant No.3, on 1st June 2011. since the Head Owners withdraw the Vessel from the service to our clients, our clients must likewise do so under the C/P with you.” The Plaintiff has correctly submitted that by the time this letter was addressed on 7th June 2011, the vessel had already been withdrawn by Defendant No.2 from charter from Defendant No.3, on 1st June 2011. That is why Defendant No.3 has stated that since the vessel has already been withdrawn by the Head Owners, it must do likewise. The last sentence in the letter accepting repudiation of the charter-party must be seen and read in this context because the Plaintiff never repudiated the charter but Defendant No.3 did, by the act of withdrawing the vessel since the vessel was withdrawn by the Head Owners. This is made clear by the reply on behalf of the Plaintiff to the letter dated 7th June 2011 from Holman Fenwick Willan (page 98 of the Plaintiff’s compilation of documents) wherein the right of withdrawal by the Head Owner is disputed by the Plaintiff. 19. Thus, prima-facie, it does appear, even after going through the letters relied upon by the Applicant, that the Defendant No.3 has withdrawn the vessel from the Plaintiff since the same was already withdrawn by the Head Owners i.e. Defendant No.2, the Applicant herein. Thus, it cannot be held at this stage, as prayed for by Defendant No.2 that the Defendant No.1 vessel was withdrawn by Defendant No.3 from charter on account of the Plaintiff’s failure to make full payment of charter hire. Consequently, it cannot be held at this stage that the Plaintiff has suppressed the documents produced by Defendant No.3 and relied upon by the Applicant in respect of the present Notice of Motion. The issues whether on the basis of the documents produced, Defendant No.2 and/or the HK Co were entitled to withdraw the vessel from charter on account of the alleged non-payment of charter hire by Defendant No.3 and whether Defendant No.3 withdrew the vessel from charter to the Plaintiff because the vessel was withdrawn from its charter by Defendant No.2, are required to be gone into and decided at the trial. 20. 20. As regards the aforesaid decisions relied upon by Defendant No.2, it is clear therefrom that any suppression or false statement must be apparent ex-facie and writ large; it cannot amount to suppression if what is alleged to be suppressed is required to be ascertained on an interpretation of documents to establish the correct legal and factual position, as is sought to be done by the Applicant. As correctly submitted by the Plaintiff, this is a matter of trial and evidence and would amount to prejudging the issues between the parties especially where the main issue in the Suit is the wrongful withdrawal of the vessel from charter by Defendant No.2 and the same is yet to be decided. In the case of R Vs. General Commissioners, District of Kensington, relied upon by the Applicant, the Court has said, “... this is a power inherent in the Court but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made .... but if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further...” (emphasis supplied). From the documents relied upon by the Applicant, it cannot be finally decided at this stage that the withdrawal of the vessel from charter by Defendant No.3 is due to nonpayment of the hire payments by the Plaintiff. In fact, on analysis of the documents, I have reached the prima-facie view, as set out hereinabove, that Defendant No.3 has withdrawn the vessel from charter as a consequence of the withdrawal of the vessel from charter by Defendant No.2. In view thereof, it cannot be held that there has been suppression of facts, much less, an attempt to deceive the Court. 21. The contention taken by the Applicant that the Plaintiff did not disclose that it had invoked arbitration against Defendant No.3, is also of no relevance to the issues that would be the subject matter of the present Suit. Delay in service of the Writ of Summons on Defendant No.3 also does not entitle the Defendant No.2 to get any reliefs as sought in the Notice of Motion. 22. Delay in service of the Writ of Summons on Defendant No.3 also does not entitle the Defendant No.2 to get any reliefs as sought in the Notice of Motion. 22. In the circumstances, in view of the facts set out hereinabove, it is clear that hearing of the Suit has been unnecessarily delayed despite directions of the Hon’ble Supreme Court expediting the same. The need of the hour in the present Suit is to expeditiously proceed with hearing of the Suit and not to waste any further time. The Notice of Motion is therefore dismissed and the matter be placed for framing of issues on 12th June 2013.