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2018 DIGILAW 1026 (MAD)

Indianocean Shipping Pvt. Ltd. , Rep. by its Head of Insurance & Legal, Anil T. Saigal v. Kamarajar Port Limited, Ennore, Rep. by its Chairman

2018-03-13

M.VENUGOPAL, S.VAIDYANATHAN

body2018
JUDGMENT : M. Venugopal, J. 1. Heard the Learned counsel appearing for both parties and perused the materials available on record. 2. According to the appellant, Writ Petition in W.P.No.2979 of 2018 was filed before this Court by the owners of M.T.DAWN KANCHIPURAM for grant of Port Clearance to allow the Vessel MT DAWN KANCHIPURAM lying at the Ennore Port, to be towed to Vishakapatnam to carry out the repairs. In the said Writ Petition, ultimately, this Court passed final order on 13.02.2018 permitting the release of the said Vessel, subject to terms set out in paragraph 14 of the said order, including inter-alia, furnishing of unconditional and irrevocable Bank Guarantee for a sum of Rs.188 Crores in favour of the Director of Fisheries within a period of seven days. 3. The Learned Senior Counsel appearing for the Appellant/writ petitioner-Company submits that U.K. P & I Club, the insurers of BW MAPLE, had brought to the notice of the Fisheries Department, Government of Tamil Nadu, the communication dated 17.01.2018 addressed by the Director of Fisheries to the Steamship Mutual Underwriting Association Limited, by which, the Government of Tamil Nadu had agreed to accept the payment of Rs.141 Crores including the restoration claims of Rs.10 Crores, strictly without prejudice to the claims relating to livelihood loss due to the oil spill caused by the collision between MT DAWN KANCHIPURAM and LPGC BW MAPLE and to secure the remaining claim amount of Rs.99 Crores out of the total claim of Rs.240 Crores preferred by the Government of Tamil Nadu. 4. The stand of the Appellant/writ petitioner is that U.K. P & I Club and the Steamship Mutual Underwriting Association Limited, had also had meetings with the officials concerned and brought to their notice that a sum of Rs.15 Crores had already been paid to the Government of Tamil Nadu towards the claims of fishermen and therefore, credit should be given for such payment and the petitioner as well as the Owners of LPGC BW MAPLE and their respective insurers are desirous of amicably resolving the claims arising out of the said collision, made the following proposal of compromise for consideration by this Court and prayed for modification of the order passed by this Court on 13.02.2018 in W.P.No.2979 of 2018. 5. 5. Be that as it may, the Appellant and the Fourth Respondent have arrived at a compromise and accordingly, C.M.P.No.5302 of 2018 in W.A.No.537 of 2018 is filed to record the Joint Memo of Compromise, dated 02.03.2018. The terms of the said compromise read as follows: "1. The U.K. P & I Club, on behalf of the Owners of LPGC BW Maple and the M.T.Dawn Kanchipuram, shall deposit a sum of Rs.141 Crores, strictly without prejudice, towards the various claims lodged by the fishermen and their Associations for a sum of Rs.240 Crores, preferred by the Government of Tamil Nadu, including the restoration claims of Rs.10 Crores, with such deposit being made within 14 days from the date on which an order is passed by this Hon'ble Court in this Memo. 2. To secure the remaining claims out of the total claim of Rs.240 Crores preferred by the Government of Tamil Nadu before the Hon'ble National Green Tribunal, Southern Zonal Bench and in addition to what is stated in paragraph 1 above, the U.K. P & I Club and the Steamship Mutual Underwriting Association Limited, shall, on behalf of the Owners of both the LPGC BW Maple and M.T.Dawn Kanchipuram, also arrange for the execution of a Bank Guarantee for a sum of Rs.84 Crores (Rs.99 Crores less Rs.15 Crores paid earlier by the Steamship Mutual Underwriting Association Limited) in favour of Government of Tamil Nadu represented by the Director of Fisheries within 21 days from the terms of such Bank Guarantee being mutually agreed. 3. The petitioner shall comply with the condition stipulated by the 1st respondent herein the Memo filed before this Hon'ble Court dated 13.02.2018. The petitioner shall furnish a Bank Guarantee of Rs.5.68 Crores towards the claim of the Department of Environment paid by Kamarajar Port Ltd., as stated in the said memo within 7 days from the date of receipt of the copy of the order of this Hon'ble Court passed on the memo filed herein and keep the said Bank Guarantee alive until the claim secured by the said guarantee is finally decided by a competent court or settled. 4. 4. Upon compliance of clauses 1, 2 and 3 above, the Director General of Shipping shall return to the U.K. P & I Club the Bank Guarantee dated 31.08.2017 executed by Kotak Mahindra Bank Ltd., along with the covering letter confirming the return/discharge of the said Bank Guarantee at the earliest. 5. Upon compliance with clauses 1, 2 and 3 above, the Vessel Dawn Kanchipuram shall be permitted to immediately sail out from Kamarajar Port Ltd., Ennore, and the 2nd and 3rd respondents shall on demand provide their clearance and consent to the 1st respondent so as to enable the Dawn Kanchipuram to sail. 6. Since the Hon'ble National Green Tribunal, Southern Zonal Bench has directed, in Application Nos.14, 16, 38 and 40 of 2017, the Fisheries Department, Government of Tamil Nadu, to entertain, appraise and disburse the claims of the fishermen and their Associations, the Government of Tamil Nadu would do so upon the sum of Rs.141 Crores being deposited with them." 6. It is to be noted that for recording the said Joint Memo of Compromise, dated 02.03.2018 entered into between the respective parties in C.M.P.No.5302 of 2018 in W.A.No.537 of 2018, the fifth respondent has no objection. Accordingly, this Court, while recording the abovesaid Memo of Compromise entered into between the respective parties in C.M.P.No.5302 of 2018 in W.A.No.537 of 2018, modifies the order passed by the learned Single Judge in W.P.No.2979 of 2018, dated 13.02.2018, by substituting the terms of compromise extracted supra. 7. It is made clear that the judgment of this Court rendered in this Writ Appeal shall come into effect within two weeks from the date of receipt of a copy of this judgment. 8. With the abovesaid observations and also stating that the Memo of Compromise dated 02.03.2018 arrived at between the respective parties, shall form part and parcel of the judgment rendered in this Writ Appeal, the present Writ Appeal in W.A.No.537 of 2018 and C.M.P.No.5302 of 2018 stand disposed of. No costs.