Judgment : VINOD K. SHARMA,J., 1. Mr.A.Ajaz Ahmed filed C.S.No.787 of 2012 under Order XLII Rules 1, 2 and 3 of the O.S. Rules r/w Order VII Rule 1 of the Code of Civil Procedure, for recovery of Rs.11,34,137/- (Rupees Eleven Lakhs Thirty Four Thousand One Hundred and Thirty Seven only) together with interest at the rate of 24% p.a. since the filing of suit till realization. 2. The applicant / plaintiff also prayed for arrest of the defendant vessel M.T.Pratibha Warna in as is where is condition, which was in the Indian Waters at the port of Chennai, and for sale of the vessel to satisfy the suit claim. 3. Whereas Mr.N.Mohammed Saud also filed C.S.No.696 of 2012 under Order XLII Rules 1, 2 and 3 of the O.S. Rules r/w Order VII Rule 1 of the Code of Civil Procedure for recovery of Rs.11,24,543.17 (Rupees Eleven Lakhs Twenty Four Thousand Five Hundred Forty Three and Paise Seventeen only) along with interest at the rate of 24% p.a. from the date of filing of the suit till realization and also for arrest and sale of defendant vessel M.T.Pratibha Warna in as is where is condition, which was at the Indian Waters at the port of Chennai. It was also prayed that sale proceeds be adjusted to satisfy the claim of the plaintiff / applicant. 4. A.No.4730 of 2012 was moved by the plaintiff / applicant for arrest of the defendant vessel M.T.Pratibha Warna together with her engines, gears, tackles, apparels, plant, machinery, furniture and fixtues and paraphernalia. 5. This Court, while issuing notice to the respondents / defendants, ordered arrest of the vessel M.T.Pratibha Warna. The order dated 25.10.2012 reads as under: "The suit has been filed invoking the Admiralty jurisdiction for recovery of Rs.11,24,542.55 and for arrest of the defendants' vessel viz., M.T. PRATIBHA WARNA. 2. The applicant/plaintiff contends that they are ship chandler at Chennai supplying necessaries to various ships in all the ports in India. The defendant is also one of the recipient of the supplies made by the plaintiff. From July 2011 onwards, the applicant /plaintiff has been supplying various necessaries to the defendant vessel on 45 days credit basis. Even though, the applicant/plaintiff made supplies to an extent of Rs.9,99,070.28, only a sum of Rs.62,749.72 alone has been paid by the defendant. The defendant is also one of the recipient of the supplies made by the plaintiff. From July 2011 onwards, the applicant /plaintiff has been supplying various necessaries to the defendant vessel on 45 days credit basis. Even though, the applicant/plaintiff made supplies to an extent of Rs.9,99,070.28, only a sum of Rs.62,749.72 alone has been paid by the defendant. Since no amount was paid by the defendant, e-mails were sent by the applicant demanding payments. However, the defendant has not responded, which compelled the applicant/plaintiff to approach this court seeking the relief as prayed for. 3. A perusal of the invoices dated 11.04.2012, 04.05.2012, 09.05.2012 would disclose that the necessaries were supplied by the applicant/plaintiff. E-mail dated 28.08.2012, 04.09.2012 and 05.09.2012 sent to the defendant would disclose that inspite of many calls, the defendant did not respond and failed to make the payment. In fact through e-mail dated 3.09.2012, the applicant/plaintiff warned the defendant if the amount is not paid, they will proceed with arrest of the ships. Inspite of that no amount has been paid. The statement of the account filed would show that a sum of Rs.9,99,070.82 is due as principal apart from interest. It is stated in para 12 of the affidavit, the defendant is indebted to various creditors and the vessels are only security. The applicant has got a maritime claim over the defendant vessel as a supplier of necessaries. The vessel called M.T. PRATIBHA WARNA is presently in outer anchorage of Madras Port, after partially discharging the cargo. The vessel may sail out from the Port at any time. If the ship is not arrested, the applicant may not be in a position to recover the amount. 5. Notice to the respondents returnable by 19.11.2012. Private notice is also permitted." 6. Mr.A.Ajaz Ahmed/plaintiff in C.S.No.787 of 2012 also filed A.No.5285 of 2012 in C.S.No.787 of 2012 for arrest of defendant vessel M.T.Pratibha Warna together with her engines, gears, plant, machinery, furniture, fixtures and paraphernalia. 7. No order was passed on this application, as the Vessel had already been ordered to be arrested in C.S.No.696 of 2012. 8. Mr.A.Ajaz Ahmed/plaintiff in C.S.No.787 of 2012 also filed A.No.5285 of 2012 in C.S.No.787 of 2012 for arrest of defendant vessel M.T.Pratibha Warna together with her engines, gears, plant, machinery, furniture, fixtures and paraphernalia. 7. No order was passed on this application, as the Vessel had already been ordered to be arrested in C.S.No.696 of 2012. 8. Captain Ajay Thiruvengadam filed A.No.5200 of 2012 in C.S.No.696 of 2012 against the plaintiff / applicant as well as the owners and parties interested in the Vessel M.T. Pratibha Warna, seeking permission to permit M/s.Sea Traffic, having its office at No.30, Errabalu Chetty Street, Chennai, to effect supplies as per the list annexed, to the defendant Vessel M.T.Pratibha Warna on first priority basis or from the owners of the defendant Vessel M.T.Pratibha Warna. 9. Along with the application, affidavit of K.M.Allauddin, son of Mr.K.M.Vasiuddin of M/s. Sea Traffic, was also filed to permit him to supply the Vessel M.T.Pratibha Warna as per the requirements of the Master of the Vessel M.T.Pratibha Warna and to claim reimbursement of Rs.36,37,201.20 (Rupees Thirty Six Lakhs Thirty Seven Thousand Two Hundred One and Paise Twenty only), out of the sale proceeds of the Vessel M.T.Pratibha Warna. 10. Counter has been filed to A.No.5200 of 2012 filed by the Captain Ajay Thiruvengadam, by the Managing Director of Pratibha Shipping Company Limited (PSCL), wherein the stand taken is that, PSCL is the registered owner of the Vessel M.T.Pratibha Warna, which is an Indian Vessel and the owners of the vessel are also Indian Companies, registered under the Companies Act. 11. The stand of the owners is that on 01.12.2012, PSCL has supplied provisions to the Vessel and in support thereof filed copies of delivery challan acknowledgments before the Master. It is submitted, that as per the Master's email dated 01.12.2012, the Vessel has 26.6 MT of MGO, which is sufficient till 20th December, 2012. Fresh water was supplied on 16.12.202, which is again sufficient till 20th December, 2012. Lube Oil was also available to last till 15.12.2012. Undertaking was given to supply further fuel, MGO, lube oil and fresh water before its depletion. Therefore, it is pleaded that A.No.5200 of 2012 has been rendered infructuous. 12. When these applications came up for hearing after notice, the owners and parties interested in Vessel M.T. Pratibha Warna sought time to settle the matter with the claimant. Undertaking was given to supply further fuel, MGO, lube oil and fresh water before its depletion. Therefore, it is pleaded that A.No.5200 of 2012 has been rendered infructuous. 12. When these applications came up for hearing after notice, the owners and parties interested in Vessel M.T. Pratibha Warna sought time to settle the matter with the claimant. However, the parties failed to reach any settlement. 13. The plaintiff / applicant thereafter filed A.No.5034 of 2012 for sale of defendant Vessel M.T. Pratibha Warna lying at the port of Chennai in as is where is condition as per the terms and conditions to be fixed by this Hon'ble Court. 14. It is pleaded by the plaintiff / applicant, that he has filed the suit for recovery of Rs.11,24,542.55 (Rupees Eleven Lakhs Twenty Four Thousand Five Hundred Forty Two and Paise Fifty Five only) and for arrest and sale of defendant Vessel M.T.Pratibha Warna. The suit is filed under the Admiralty jurisdiction, on account of non payment by the owners of the defendant Vessel for supply of necessaries effected by the plaintiff to their vessels M.V.Pratibha Neera, M.V.Pratibha Warna and M.V.Pratibha Indrayani. 15. It is submitted that vide order dated 25.10.2012 in A.No.4730 of 2012 in C.S.No.696 of 2012, order of arrest was passed by this Court as noticed above. Inspite of service of warrant of arrest, the owners of the defendant vessel did not put in appearance in the suit. In support of the claim, the plaintiff / applicant has filed the following documents: 16. It is the case of plaintiff / applicant, that after execution of warrant of arrest, two more creditors have approached this Court, i.e., Ark Marine Services Inc, Japan for recovery of Rs.89,38,422.59 (Rupees Eighty Nine Lakhs Thirty Eight Thousand Four Hundred Twenty Two and Paise Fifty Nine only) and the crew of the defendant Vessel M.T.Pratibha Warna has also intervened by moving A.Nos.4868 and 4869 of 2012 for recovery of Rs.1,53,75,656.08 (Rupees One Crore Fifty Three Lakhs Seventy Five Thousand Six Hundred Fifty Six and Paise Eight only) as wages and future wages. 17. It is the case of the plaintiff / applicant, that one after another creditors have started approaching this Court. 17. It is the case of the plaintiff / applicant, that one after another creditors have started approaching this Court. The submission therefore is, that owners of the vessel are facing severe financial crisis, as they are indebted to various creditors and are not in a position to pay debts to any of their creditors. 4. Since the applicant has got a maritime claim, there shall be an order of arrest of the vessel M.T. PRATIBHA WARNA as prayed for. 18. M/s. PSCL, the owner of defendant vessel also owns the following vessels: a) M.T. Pratibha Koyna b) M.T. Pratibha Indrayani c) M.T. Pratibha Chandrabagha d) M.T. Pratibha Cauvery e) M.T. Pratibha Neera It is the case of the plaintiff / applicant, that M.T. Pratibha Cauvery, another vessel of M/s. PSCL, was also grounded off in the recent cyclone and the compensation claim against the owners of the defendant Vessel was lodged by filing writ petition in this Hon'ble Court. 19. Similarly, M.T. Pratibha Neera, another vessel belonging to the owners, has been arrested under the order of this Court in C.S.No.734 of 2012, on the suit filed by another creditor. 20. The application therefore is filed for sale of the Vessel on the ground, that apart from depreciation in value, if the Vessel is allowed to remain idle without maintenance, there is every possibility that it may become wreck and cause inconvenience to the regular movement of the ships in the Chennai Port. This will further result in irreparable loss to the creditors. 21. It is the case of the plaintiff / applicant, that as the defendants have not contested the suit even after execution of the warrant of arrest, therefore, the Vessel M.T. Pratibha Warna be ordered to be sold. It is also the case of the plaintiff/applicant, that warrant of arrest was served on the defendant vessel on 26.10.2012 and even after expiry of 12 days from the return of the warrant, the owners of the defendant vessel have not entered appearance either in the suits C.S.No.696 of 2012 or C.S.No.717 of 2012. 22. It is pleaded, that claim of the applicant is well founded and supported by undisputed documents. Hence, the applicant is entitled to bring the defendant Vessel M.T.Pratibha Warna for sale under Order XLII Rule 13 of the O.S.Rules. 23. Order XLII Rule 13 reads as under: "R.13. 22. It is pleaded, that claim of the applicant is well founded and supported by undisputed documents. Hence, the applicant is entitled to bring the defendant Vessel M.T.Pratibha Warna for sale under Order XLII Rule 13 of the O.S.Rules. 23. Order XLII Rule 13 reads as under: "R.13. If when the suit comes before the Court, the judge is satisfied that the plaintiff's claim is well founded, he may pronounce for the claim and may order the property to be sold with or without previous notice and the proceeds paid into the Registry or make such order in the premises as he shall think just." 24. Learned counsel for the applicant / plaintiff vehemently contended, that besides the claim of applicant/plaintiff, there is a claim of seamen with regard to their wages. The submission was that the right of Seamen is pre-existing rights, which cannot be taken away. In support of this contention, learned counsel for the applicant placed reliance on the judgment of the Hon'ble Supreme Court in O. Konavalov vs. Commander, Coast Guard Region and others, (2006) 4 SCC 620 , wherein the Hon'ble Supreme Court has been pleased to lay down as under: "49. In our opinion, the appellant and other crew members are entitled to a fair and just treatment and the confiscation of the ship shall not be treated as a prized catch of an enemy Ship deserving condemnation without exception. The case on hand does not present features of clear and demonstrated complicity of the crew. The comity of nations is a reciprocal courtesy which one member of the family of nations owes to the others. In our opinion, the crew members are not responsible for the confiscation and sale of the ship and the cargo. It is settled law that action of the State has to be based on reasonableness and it cannot deprive the basic human rights afforded under the Constitution of India more so under Article 21. 53. We, therefore, unhesitantly hold that all the seamen who were on board the vessel Kobe Queen I also known as Gloria Kopp are entitled to their full wages and perks. We, therefore, direct the Commander, Coast Guard Region (East), Fort St. 53. We, therefore, unhesitantly hold that all the seamen who were on board the vessel Kobe Queen I also known as Gloria Kopp are entitled to their full wages and perks. We, therefore, direct the Commander, Coast Guard Region (East), Fort St. George, Chennai - 600 009 and the other respondents including the Customs Department and the concerned Department of the Government of India to pay the wages forthwith to all the crew members who were on board in the vessel Kobe Queen I also known as Gloria Kopp at any rate not later than three months from the date of this judgment through the Consulate of the country concerned." 25. Learned counsel for the applicant / plaintiff also placed reliance on the judgment of this Court in Inter access Marine Bunkering Ltd. & Others vs. K.M. Allauddin & another, 2009 (6) MLJ 158 . However, in the case, though the Court was dealing with the application filed in C.S.No.441 of 2001, this Court proceeded to decide the following issues; "a) Whether the suppliers of necessaries and persons to whom wages are payable have a maritime lien or just a maritime claim? b) Does a maritime lien, if it exists, override the claim of a registered mortgagee? c) Whether the failure of The Royal Bank of Scotland, to obtain a decree on mortgage (instead of a simple decree fro money as they have obtained now) and to obtain an order of arrest of the vessel, has a bearing upon their claim as a registered mortgagee?" The question of sale by way of interim application was not considered in this suit. 26. Learned counsel for the applicant / plaintiff thereafter placed reliance on the judgment of the Hon'ble Supreme in M.V. Elisabeth and others vs. Harwan Investment & Trading Pvt. Ltd. with M.V. Elisabeth and another vs. M/s. Harwan Investment & Trading Co. and another, AIR 1993 SC 1014 , wherein the Hon'ble Supreme Court was pleased to lay down, that Admiralty jurisdiction of High Courts is not limited by Admiralty Court Act, 1861 and Colonial Courts of Admiralty Act, to hold that Andhra Pradesh High Court could order arrest and detention of foreign ship. 27. and another, AIR 1993 SC 1014 , wherein the Hon'ble Supreme Court was pleased to lay down, that Admiralty jurisdiction of High Courts is not limited by Admiralty Court Act, 1861 and Colonial Courts of Admiralty Act, to hold that Andhra Pradesh High Court could order arrest and detention of foreign ship. 27. Reliance was also placed on the judgment of the Hon'ble Bombay High Court in ICICI Ltd. vs. M.F.V. Shilpa, an Indian Vessel and others, AIR 2002 Bombay 381, wherein it has been held, that Admiralty jurisdiction of High Court to entertain suits is not ousted by recovery of debts due to Banks and Financial Institutions Act. 28. Finally reliance was placed on the judgment of this Court in M/s. Chidambaram Shipcare Private Limited vs. Owners and Parties Interested (C.S.Nos.585, 604, 628, 695, 706, 707, 772, 1004 and 1015 of 2010), decided on 28.02.2011, where the Vessel was ordered to be sold on as is where is condition by laying down tender condition. 29. Learned counsel for the applicant / plaintiff, by relying on the judgment referred to above, vehemently contended, that this Court can exercise powers under Order XLII Rule 13 and order sale of defendant vessel M.T. Pratibha Warna on as is where is condition as per the tender terms to be fixed by this Court. 30. On consideration, I find that this application for sale of Vessel M.T. Pratibha Warna is not maintainable at this stage, as the reading of Order XLII Rule 13 shows, that this Court can decree the claim, if it is well founded and accordingly, order the property to be sold. The pre-requisite is that there should be a decree in favour of the applicant / plaintiff. This can be the only interpretation, as Order XLII Rule 34 of the Madras High Court O.S. Rules is as under: "R.34. Every sale under the decree of the Court, shall, unless the Judge shall otherwise order be made by the Registrar in like manner as a sale of movable property in execution of a decree in an ordinary civil suit." 31. Therefore, in absence of decree, the Vessel cannot be ordered to be sold, though it can be ordered to be arrested. 32. Therefore, in absence of decree, the Vessel cannot be ordered to be sold, though it can be ordered to be arrested. 32. Special summary procedure under Order XLII Rule 13 of the Madras High Court O.S. Rules can be invoked only in the event of the plaintiff and defendant's attorneys give consent to the summary procedure. The rules further prescribe the statutory format to be filled by the attorneys of plaintiff and defendant for summary procedure. In absence thereof, it is not possible for this Court to decree the claim on an application moved for sale of the Vessel. 33. As a matter of fact, the remedy with the applicant / plaintiff is to invoke Order 42 Rule 12, as admittedly the defendants have failed to enter appearance, therefore, request could be made to cause the suit to be set down for hearing, and it is while disposing of the suit and decreeing the claim, that the Vessel can be ordered to be sold and not before passing the decree. 34. Consequently, while affirming the order of arrest of the Vessel, this application for sale is ordered to be dismissed, with liberty to the applicant / plaintiff to get the suit listed for adjudication of the claim under Order XLII Rule 12 of O.S. Rules. 35. In view of the undertaking of the Owners in counter to the application filed by the Captain Ajay Thiruvengadam, it is ordered, that necessary supplies be made to the ship as demanded by the Captain of the ship, and in the event of non supply of necessaries, it shall be open to M/s. Sea Traffic to effect supplies against charge on the Vessel for recovery of the amount at the time of sale. 36. For the reasons stated above, A.Nos.4730 and 4868 of 2012 in C.S.No.696 of 2012 and A.No.5285 of 2012 in C.S.No.787 of 2012 are ordered as prayed for. A.No.5200 of 2012 in C.S.No.696 of 2012 is disposed of by directing the owners to effect supplies as demanded by Captain and on its failure, it shall be open to M/s. Sea Traffic to supply against charge over the Vessel of amount due. A.No.5034 of 2012 is dismissed as premature, with liberty to applicant / plaintiff to file application under XLII Rule 12 for disposal of suit claim with liberty to move the Court for sale of Vessel. 37. No costs.