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2016 DIGILAW 414 (GUJ)

ING Bank NV v. MV Naias

2016-02-22

N.V ANJARIA

body2016
ORDER N.V ANJARIA, J. Upon a mention made at 11.00 a.m and urgency having been shown by learned Advocate for the plaintiff Ms. Paurami Sheth, the captioned Suit was permitted to be circulated, which was notified by the Registry in a separate board. The same was taken up in the second half in view of urgency shown. 2. It is the case of the plaintiff, stated on oath, that the defendant-vessel is indebted to the plaintiff in respect of amount due towards supply of Bunker. The total amount claimed by the plaintiff from the defendant is USD 293,360.92 comprised of principal amount of USD 176,400 plus interest accrued and administrative cost to the tune of USD 96,960.92 and USD 20,000 towards the cost of litigation with interest running on the principal amount from the date of Suit. The specific details of the said claim as stated in the plaint are as under. “5. On 22nd October, 2014, Tatsuo Consulting Limited on of the Defendant Vessel and/or master and/or owners and/or charterers and/or managers and/or operators approached OW for supply of 350 Mts of Fuel oil having specifications 380-CST 3.5% (hereinafter referred to as “Bunkers”) to the Defendant Vessel at Port Syros on 23rd October, 2014. OW issued Sales Order Confirmation bearing no. 145-19756 to Tatsuo Consulting Limited on behalf of the Defendant Vessel and/or master and/or owners and/or charterers and/or managers and/or operators confirming supply of Bunkers to the Defendant Vessel. A copy of the Sales Order Confirmation bearing no. 145-19756 is produced herewith. 6. On 23rd October, 2014, OW via their physical suppliers 350 Mts of Bunkers to the Defendant Vessel at Syros. Bunker Delivery Receipts dated 23rd October, 2014 bearing no 6890 was issued for the said supply. The said Bunkers were accepted without raising any protest and/or demur. The Master/Chief Engineer of the Defendant Vessel acknowledged receipt of Bunkers by endorsing upon the Bunker Delivery Receipts. A copy of the Bunker Delivery Receipts is produced herewith. 7. On 23rd October, 2014, OW issued an Invoice bearing No. 145-S19662 on account of the Defendant Vessel and/or master and/or owners and/or charterers and/or managers and/or operators for an amount of USD 176,400. It is pertinent to note that the Invoice provided that payments made beyond the due date would be charged interest as per the general terms and conditions of OW. It is pertinent to note that the Invoice provided that payments made beyond the due date would be charged interest as per the general terms and conditions of OW. A copy of the invoice bearing No. 145 - S19662 dated 23rd October, 2014 is produced herewith.” 3. It appears that the plaintiff entered into an English Omnibus Security Agreement dated 19th December, 2013 whereby the plaintiff has a charge on the receivables of OW Bunker Malta Ltd. The action against the defendant-vessel is covered under the aforesaid agreement. 4. Learned Advocate for the plaintiff invited attention of the Court to the Sales Order Confirmation dated 22nd October, 2014 of the Bunker being the product 380-CST 3.5%. Bunker Delivery Note and the Invoice dated 23rd October, 2014 for USD 176,400 for the quantity of 350,000 MT reflecting the claim towards supply of Bunker. The said claim is in the nature of maritime claim. 4.1 Learned Advocate for the plaintiff further stated that defendant-vessel which is a foreign sea-going vessel flying the flag of Cyprus, is presently stationed at Kandla. In paragraphs 17 and 18 of the plaint averments are made that the defendant-vessel entered into territorial waters of India and is at Kandla Port, Gujarat and may sail away after discharging the cargo. The admiralty jurisdiction of this Court is attracted in view of the facts stated that the defendant-vessel is within the territorial waters of the country. The Equasis Report dated 15th February, 2016, copy of which is produced on record, shows that ownership of the vessel is not changed during the relevant period. 5. From the facts stated in the plaint on oath it prima-facie appears that the plaintiff has a maritime claim against the defendant-Vessel and the amount is recoverable in the nature of such claim. 6. On behalf of the plaintiff-Bank one Mr. Raju Prabhatbhai Desai, Constituted Attorney has filed necessary undertaking dated 22nd February,2016 that the plaintiff will reimburse the damages by way of compensation in the event if ultimately it is found that arrest of the defendant-vessel is wrongful. 7. Keeping in view the above said facts and the aspects, Notice, returnable on 25th February, 2016. 7.1 A case for arrest of Vessel is made out on above facts narrated, without which the admiralty action would infructuate. 7. Keeping in view the above said facts and the aspects, Notice, returnable on 25th February, 2016. 7.1 A case for arrest of Vessel is made out on above facts narrated, without which the admiralty action would infructuate. It is hereby ordered that Registry of this Court shall issue Warrant for the arrest of defendant-vessel MV NAIAS (IMO 9611254) along with her hull, engines, gears, tackles, boats, bunkers, machinery, apparel, plant, furnitures, equipments, paraphernalia and all appurtenances, at present lying at Kandla Port and that the Warrant of Arrest be executed at any time of the day or night or on Sundays or holidays and it is further ordered that the Port Officer and the Customs Authorities at Kandla Port do effect the arrest, seizure or detention of the defendant vessel, MV NAIAS (IMO 9611254) at the Kandla Port or such other place wherever she may be within the territorial waters of India and it is further ordered that in the event of the defendant and/or those interested in his depositing in this Court a sum of USD 293,360.92 together with other expenses and interest at the rate of 3% p.a or in the alternatively furnishing Bank Guarantee of any Nationalise Bank in India of the amount of USD 293,360.92 from the date of Suit till its payment, the said Arrest Warrant shall not be executed against the defendant-vessel MV NAIAS (IMO 9611254). 8. It is directed that defendant-vessel MV NAIAS (IMO 9611254) shall not travel, if has not travelled, beyond the territorial waters of India from the Port of Kandla. The Port Officer and the Customs Authorities at Kandla Port are directed to arrest the Vessel MV NAIAS (IMO 9611254) at present lying at Kandla Port and within the territorial waters of India and to keep the Vessel on Board under arrest until further orders of this Court. It is further ordered that the Port Officer and the Customs Officer at Kandla Port shall render all assistance to the plaintiff or its representative in effecting the Warrant of Arrest on the Vessel MV NAIAS (IMO 9611254). 9. It is open for the plaintiff's Advocate to communicate the above order by Fax/E-mail message at their own cost and the authorities are directed to act on Fax/E-mail message. 10. 9. It is open for the plaintiff's Advocate to communicate the above order by Fax/E-mail message at their own cost and the authorities are directed to act on Fax/E-mail message. 10. Office is directed to serve the warrant of arrest on the Master of the Vessel MV NAIAS (IMO 9611254) or through the agent of the vessel and send copy thereof to Port and Customs Authorities at Kandla. 11. It is made clear that it will be open for the defendant to approach this Court even prior to the returnable date with adequate notice to the plaintiff. 12. Direct Service is permitted, today.