JUDGMENT : C.S.No.3 of 2017 1. C.S. No.3 of 2017 was filed on 25-10-2017 by Monjasa DMCC, a Company incorporated under the laws of the United Arab Emirates and having its office in Dubai, UAE (plaintiff) for recovery of U.S. $ 512,615.09 with interest at 2% p.m. on the said amount till realization along with U.S.$ 20,000 towards cost of legal proceedings in India + Sheriff’s poundage; to arrest M.V. Kiveli (IMO - 8204731), a foreign vessel (1st defendant), then lying in the port and harbour of Krishnapatnam, in Indian territorial waters along with her hull, tackle, engines etc., on board by or under the order of this Court for satisfaction of the plaintiffs claim, costs and poundage; appropriation of the same and the proceeds of the sale thereof towards the plaintiffs suit claim, costs and poundage etc. 2. The 1st defendant is a vessel flying under the flag of Liberia and is represented by it’s regd. Owners Monford Management Ltd, Monrovia , Liberia. The 2nd defendant is the Krishnapatnam Port Company Limited and the 3rd defendant is the Sagar Ship Management PTE Limited, Singapore. THE PLAINTIFF’S CASE 3. According to the plaintiff, the 3rd defendant approached it on behalf of the Owners/Master/Charterer and for Managers and/or Operators and/or Agents of the 1st defendant to supply 400 Mts. of IFO-380 RMG 380 “Bunkers” (fuel) at Colombo between 09-06-2013 and 11-06-2013 and it issued bunker confirmation order dated 06-06-2013 bearing No.AE106957. 4. It is contended that the supply was to be governed by the Monjasa Terms and Conditions, January, 2012; on 05-06-2013, :he 3rd defendant wrote an email to the Master of the Ist defendant informing that 400 MTs of bunkers have been arranged through the plaintiff and instructed the Master to extend full cooperation to the physical suppliers for the said supply; on 07-06-2013 the 3rd defendant wrote to the plaintiff that Owners wish to appoint a bunker surveyor for inspecting the bunkers to which the plaintiff agreed; and that Owners/Master/Charterer/ Agent/Manager/ operator of the 1st defendant vessel had knowledge of the bunkers being supplied by the plaintiff. 5. 5. It is contended that on 10-06-2013, quantity of bunkers to be supplied was increased to 700 MTs and this was confirmed by 3rd defendant on behalf of the Owners/Master/Charterer/ Agent/Manager/ Operator of the 1st defendant vessel; on 14-06-2013, the plaintiff through its nominated physical supplier supplied 699.85 MTs of bunkers to the 1st defendant vessel at Colombo which was accepted without any protest or demur; the bunker delivery note was stamped with a no lien stamp and me Engineer of the 1st defendant vessel acknowledged receipt of bunkers by endorsing upon bunker delivery note No.12539; and on 24-06-2013, plaintiff issued an invoice bearing No.AE 26596 on account of the 1st defendant and/or Owners/Master/Charterer/ Agent/Manager/Operator for S$ 471,552.42 stating clearly that payments made beyond the due date would be charged interest at 2% p.m. 6. It is alleged that even by 03-07-2013, the due date of the invoice, the owners of the 1st defendant vessel failed and neglected in making the outstanding payment. 7. The plaintiff contended that an email was addressed on 20-01-2014 informing the owners to pay the outstanding amount immediately and threatening to have the vessel arrested in default of payment; the owners of the 1st defendant vessel disputed plaintiff’s claim in their reply email dt.21-01-2014; that in 2017, an arrest application was moved against the 1st defendant vessel in the Courts at Dubai and provisional attachment for the principal amount was granted and subsequently on deposit of US$ 471,552,42 the vessel was released. 8. The plaintiff contended that it had supplied bunkers on faith and credit to 1st defendant vessel and its Owners/Master/Charterer/Agent/Manager/Operator, that they were received and consumed for prosecuting her voyages, but despite repeated reminders, the 3rd defendant on behalf of 1st defendant and/or Owners/Master/Charterer/Agent/Manager/Operator did not make the payment; that the bunkers are essential and necessary for the operation of the 1st defendant vessel; supply of bunkers was supply of the goods or materials to a ship for her operation or maintenance and would constitute ‘necessaries’ and gives rise to and/or constitutes a maritime claim/lien; and therefore the plaintiff was compelled to file the present suit for recovery of US $ 512,615.09 representing the interest liability on the principal amount at 2% p.m. along with US$ 20,000/- towards costs by securing the same by arrest of the vessel. 9. 9. It is contended that the plaintiff is entitled to proceed against the 1st defendant vessel ill rem and ill personam as it has a maritime lien against the 1st defendant vessel and is entitled for the arrest, condemnation and sale of the 1st defendant vessel for the satisfaction of its claims by invoking the Admiralty jurisdiction of this Court. THE INTERIM ORDER DT.25.10.2017. 10. On 25-10-2017, a learned Single Judge of this Court issued notice to the defendants in the suit and granted an ad interim injunction restraining the 1st defendant vessel from leaving the port limits of the 2nd defendant, until further orders. APPLN.NO.5 OF 2017 11. Application No.5 of 2017 was filed by the 1st defendant in the suit in this Court to: (a) direct the Registrar (Judicial), High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, Hyderabad to accept security in the Indian equivalent of US$ 512,615.09 of Rs.3,38,30,096/- as claimed in the plaint by the plaintiff in from of cash security furnished by way of Demand Draft in favour of the Registrar (Judicial); and to vacate the order dt.25-10-2017 and direct the release of the 1st defendant vessel, and (b) to direct that, upon the security being furnished to the satisfaction of the Registrar (Judicial), the Port Officer and Customs Authority of 2nd respondent to permit the 1st defendant vessel to sail out of the Krishnapatnam port for its next destination. The order dt.1-11-2017 in AI’PLN.No.5 of 2017 12. On 1-11-2017, Application No.5 of 2017 filed by 1st defendant was taken up by this Court. 13. It took note of the affidavit filed by the 1st defendant that It is ready to secure the amount covered by the suit by way of Demand draft for Rs.3,38,30,096/- in favour of the Registrar (Judicial) of this Court, without prejudice to its rights and contentions in the suit; and a direction was given to the Registrar (Judicial) to receive the said Demand Draft and deposit the same in a separate account for the benefit of the suit; and in view of the deposit, the order dt.25-10-2017 passed in the suit directing the 2nd defendant to prevent the 1st defendant vessel from leaving the Krishnapatnam port was vacated. It was observed that the amount of deposit will be subject to further orders in the suit. 14. It was observed that the amount of deposit will be subject to further orders in the suit. 14. Consequently, after deposit of the Demand Draft with the Registrar (Judicial on 02-11-2017, the vessel was released for its onwards voyage. I.A.NO.2 OF 2018 15. Now, I.A.No.2 of 2018 is filed by 1st defendant to vacate order dt.25-10-2017 and to direct the plaintiff to refund the amount of Rs.3,38,30,096/- furnished by the 1st defendant pursuant to the order dated 01-11-2017 passed by this Court in application No.5 of 2017 with interest accrued thereon. I.A.NO.3 OF 2018 16. I.A.NO.3 of 2018 is also filed by 1st defendant to direct the plaintiff to secure the claim for damages of the 1st defendant in a sum in Indian Rupees equivalent to US $ 60,236.01 with interest at 12% p.a. for wrongful arrest of the 1st defendant vessel and deposit the same by way of cash security through Demand Draft or Bank Guarantee in favour of Registrar (Judicial) of this Court. THE PLEA OF THE 1ST DEFENDANT IN IAs.2 AND 3 OF 2018 17. The 1st defendant asserts that the claim of the plaintiff is against the buyer of , the bunkers, who is the 3rd defendant in the suit, and the 3rd defendant at the relevant time was the Charterer of the 1st defendant vessel and there was no cause of action against the 1st defendant. 18. It is pointed out that the 3rd defendant was not the demise Charterer or owner of the 1st defendant vessel at the time of braining the order of arrest/injunction on 25-10-2017 in the suit; that 3rd defendant was not the owner of the defendant No.1 vessel; and claim for supply of bunkers to the 1st defendant vessel was not a ‘maritime lien’ and cannot survive against the 1st defendant vessel. 19. It is contended that under Indian law, contractual non-possessory lien over a ship cannot be created by any party other than the owner of the ship; a bunker supplier, in any way, does not have a maritime lien over the vessel; and the plaintiff’s claim lies in personam only against the 3rd defendant. 20. It is contended that there is no privity of contract between the plaintiff and the 1st defendant, and there is no in personam liability of the registered owners of 1st defendant for an action in rem to lie against 1st defendant vessel. 21. 20. It is contended that there is no privity of contract between the plaintiff and the 1st defendant, and there is no in personam liability of the registered owners of 1st defendant for an action in rem to lie against 1st defendant vessel. 21. It is contended that the suit itself is founded on a dishonest notion to derive excessive financial benefit from an alleged transaction with a third party that does not in any manner whatsoever concern the 1st defendant; that the arrest of the 1st defendant vessel was wrongful, in bad faith, malicious and obtained by gross suppression and misrepresentation of material fats; that the order of arrest dt.25-10-2017 cause the 1st defendant vessel to be detained for 4.50 days at a time when it was under time charter to one Itiro Corporation B.V.1. (Charterers) at the Charter rate of US$ 12,450 per day; that the vessel was therefore treated as off-hire for that period causing direct loss (less commission) of US $ 54,262.96 apart from idling losses including cost of bunkers for the period of idling and legal costs in all, quantified at US$ 60,236.01; and therefore, I.A.Nos.2 of 2018 and 3 of 2018 be both allowed. THE POINTS FOR CONSIDERATION 22. On the basis of the above contentions, the following points arise for consideration; (a) Whether the applicant in rA.No.2 of 2018 (1st defendant) is entitled to any relief therein by vacating in toto the order dt.25-10-20147 in I.A.No.1 of 2017 as modified in I.A.No.5 of 2017 on 01-11-2017? (b) What relief, if at all, is to be granted in I.A.No.3 of 2018 to the applicant therein (1st defendant)? POINT (a): 23. Before I consider the contentions of the parties, I wish to discuss the standard of enquiry contemplated in cases of arrest of a vessel in Admiralty Jurisdiction. 24. In Videsh Sanchar Nigani Limited v. M.V. Kapitan Kud (1) (1996) 7 SCC 127 , the Supreme Court stated that the Court, while considering arrest of a vessel, ought to apply the standard whether the plaintiff has a ‘prima facie best case’ in an admiralty action. In that case, a Commercial ship was arrested for having caused in the course of its navigation, damage to the international cable laid by the plaintiff which resulted in disruption of overseas telecommunication. In that case, a Commercial ship was arrested for having caused in the course of its navigation, damage to the international cable laid by the plaintiff which resulted in disruption of overseas telecommunication. The plaintiff had contended that the vessel had anchored in a prohibited area and caused the damage, The owners of the ship moved a motion for its release contending that there was no evidence that the damage was caused by their vessel. The Trial Judge ordered release of the vessel. The Division Bench declined to interfere with the Trial Court’s order stating that, though the claim of the plaintiff cannot be said to be vexatious, and it also cannot be said that the mutter does not warrant any trial, since the captain of the vessel filed an undertaking that the vessel belonged to a Company wholly owned by the Ukranian Government and in the event of the suit being decreed, they would honour the decree. The Supreme Court reversed the orders of the Trial Judge and the Division Bench and directed a security of Rs.10 Crores be given for release of the vessel apart from an undertaking from the Ukranian Govt. undertaking to satisfy the decree without reference to execution of the decree and directed that till then the vessel shall not be released. It observed: “7. The crucial question is whether the appellant has made out prima facie case. Rules on admiralty jurisdiction in part III were framed by Bombay High Court to regulate the procedure and practice thereof on the original side of the Bombay High Court. Equally, Original side Rule 941 is relevant in this regard which provides that party applying under this rule in a suit in rem for arrest of the property shall give an undertaking ill writing or through an advocate to pay such slim by way of damages as the court may award as compensation in the event of a party affected sustaining prejudice by such order. In Mahadeo savlaram shelke v. Pune Municipal Corpn. In Mahadeo savlaram shelke v. Pune Municipal Corpn. (2) (1995) 3 SCC 33 even in case of Civil court, exercising its power under Order 39 Rule 1, this court held that while granting interim injunction, the civil court or appellate court is enjoined to impose as a condition that in the event of the plaintiff failing to prove the case set up and if damages are caused to the defendant due to the injunction granted by the court, the court would first ascertain whether the plaintiff would adequately be compensated by damages if injunction is not granted. Equally the court should also impose condition for payment of damages caused to the defendant in the same proceeding without relegating the parties for a separate suit. The plaintiff should give such an undertaking as a part of the order itself Rule 954 of Admiralty Rules provides that subject to the provisions of Rule 952 (caveat property not to be released unless notice is given to the caveator), property arrested under a warrant may be ordered to be released - (i) at the request of the plaintiff, before an appearance in person or a vakalatnama if filed by the defendant; or (ii) on the defendant paying into court the amount claimed in the suit; or (iii) on the defendant giving such security for the amount claimed in the suit as the court may direct; or (iv) on any other ground that the Court may deem just. Thus a ship arrested under warrant may be released on fulfilment any of the conditions mentioned hereinbefore. This could be done on the plaintiff showing prima facie best case. (emphasis supplied) 25. In Gulf Petrochem Energy Pvt. Lid. V. M.T. Vaior (3) (2015) SCC online BOM 1367, the Mumbai High Court referred to the decision in Videsh Sanchar Nigam Limited (1 supra) and held that the Court has to consider at the time of arrest or application for vacating arrest whether the plaintiff has a reasonably arguable best case for claiming arrest; that the Court is not thereby considering the relative merits of the rival cases and considering whether the plaintiff’s case is more probable than the defendant s case, considering the preponderance of probabilities. The standard is of ‘reasonably arguable case’ and not a ‘probable case’ at the interlocutory stage; at the same time, there is nothing in law to require the Court to restrict the enquiry to only the averments made in the plaint and material produced thereby and not look at the defence; what the Courts mean is simply that the Court is not required to analyze the rival material to find if the plaintiff has a probable case, something which the Court would do at the trial; and at the same time, it does not mean that only the plaintiffs material should be looked at. It held that there is a great danger in allowing the plaintiff in all cases to have the vessel arrested on unilateral assertions. It may be that the plaintiff suppresses important documents, which are themselves indisputable. The defendant may bring them to the Court in defence. Then if the plaintiff cannot contest these documents, it would be a travesty of justice to still allow the plaintiff to rely on his unilateral assertions in the plaint and seek confirmation of the arrest. The requirements of the standard of ‘reasonably arguable case’ are satisfied if, on the basis of the material before the Court, whether brought by the plaintiff or the defendant the plaintiff can be said to have a case to go to trial with. If he has the arrest is justified. If not, it is not justified. 26. Thus the test of plaintiff having ‘arguable best case’ is to be kept in mind before ordering a vessel’s arrest. 27. If he has the arrest is justified. If not, it is not justified. 26. Thus the test of plaintiff having ‘arguable best case’ is to be kept in mind before ordering a vessel’s arrest. 27. The Supreme Court in Liverpool and London S.P. and I Association Ltd., v. M.V. Sea Success 1 and another (4) (2004) 9 SCC 512 held that when passing a final order as regards interim arrest of the ship or otherwise, the Court should go into the question whether her arrest undeservingly prejudices the owner as well as third parties and for the said purpose, the vessel could file an application for vacation of stay; that while considering such application, the court was entitled to consider not only prima facie case but also elements of balance of convenience and irreparable injury involved in the matter; and in such a situation and particularly when both parties disclose the documents in their possession, the Court would be in a position to ascertain even Prima facie as to whether the plaintiff was able to make out the case for arrest; and if a legal question is raised by the defendant in the written statement, it does not mean that the same has to be decided only by way of an application under Order VII Rule II C.P.C. which may amount to prejudging the matter. 28. These principles need to be kept in mind while deciding these applications. 29. It is important to notice that the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 (Act 22 of 2017) was enacted to consolidate the laws relating to admiralty jurisdiction, legal proceedings in connection with vessels, their arrest, detention, sale and other matters and it come into operation with effect from 09-08-2017. 30. Section 2 (f) defines what is a Maritime claims. It states: “Maritime claim” means a claim referred to in Section 4” 31. Section 4 sets out in respect of what Maritime claims, the High Court may exercise jurisdiction. It states: Section 4. 30. Section 2 (f) defines what is a Maritime claims. It states: “Maritime claim” means a claim referred to in Section 4” 31. Section 4 sets out in respect of what Maritime claims, the High Court may exercise jurisdiction. It states: Section 4. Maritime claim: (1) The High court may exercise jurisdiction to hear and determine any question on a maritime claim, against any vessel, arising out of any- (a) dispute regarding the possession or ownership of a vessel or the ownership of any share therein; (b) dispute between the co-owners of a vessel as to the employment or earnings of the vessel; (c) mortgage or a charge of the same nature on a vessel; (d) loss or damage caused by the operation of a vessel: (e) loss of life or personal injury occurring whether on land or on water, in direct connection with the operation of a vessel; (f) loss or damage la or in connection with any goods; (g) agreement relating to the carriage of goods or passengers on board a vessel, whether contained in a charter party or otherwise; (h) agreement relating to the use or hire of the vessel, whether contained in a charter part or otherwise; (i) salvage services, including, if applicable, special compensation relating to salvage services in respect of a vessel which by itself or its cargo threatens damage to the environment: (j) towage; (k) pilotage; (l) goods, materials, perishable or non-perishable provisions, bunker fuel, equipment (including containers), supplied or services rendered to the vessel for its operation, management, preservation or maintenance including any fee payable or leviable; (m) construction, reconstruction, repair, converting or equipping of the vessel; (n) dues in connection with any port, harbor, canal, dock or light tolls, other tolls, waterway or any charges of similar kind chargeable under any law for the time being in force; (o) claim by a master or member of the crew of a vessel or their heirs and dependents for wages or any sum due out of wages or adjudged to be due which may be recoverable as wages or cost of repatriotion or social insurance contribution payable on their behalf or any mount an employer is under an obligation to pay to a person as an employee, whether the obligation arose out of a contract of employment or by operation of a law (including operation of law of any country) for the time being in force, and includes any claims arising under a manning and crew agreement relating to a vessel, notwithstanding anything contained in the provisions of Sections, 150 and 151 of the Merchant Shipping Act, 1958 (44 of 1958); (p) disbursements incurred on behalf of the vessel or its owners; (q) particular average or general average; (r) dispute arising out of a contract for the sale of the vessel: (s) insurance premium (including mutual insurance calls) in respect a/the vessel, payable by or on behalf of the vessel owners or demise Charterers: (t) commission, brokerage or agency fees payable in respect of the vessel by or on behalf of the vessel owner or demise Charterer; (u) damage or threat of damage caused by the vessel to the environment, coastline or related interests; measures taken to prevent, minimize, or remove such damage: compensation for such damage; costs of reasonable measures for the restoration of the environment actually undertaken or to be undertaken; loss incurred or likely to be incurred by third parties in connection with such damage; or any other damage, costs, or loss of a similar nature to those identifies in this clause; (v) costs or expenses relating to raising removal, recovery, destruction or the rendering harmlec : of a vessel which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such vessel, and costs or expenses relating to the preservation of an abandoned vessel and maintenance of its crew; and (w) maritime line. Explanation-for the purposes of clause (q), the expressions “particular average” and “general average” shall have the same meanings as assigned to them in sub-section (1) of Section 64 and sub-section (2) of Section 66 respectively of the Marine Insurance Act, 1963 (11 of 1963). 32. Section 5 deals with “Arrest of any vessel” in rem and states: Section 5. Arrest of vessel in rem: (1) The High Court may order arrest of any vessel which is within its jurisdiction for the purpose of providing security against a maritime claim which is the subject of an admiralty proceeding, where the court has reason to believe that- (a) the person who owned the vessel at the time when the maritime claim arose is liable for the claim and is the owner of the vessel when the arrest is effected: or (b) the demise Charterer of the vessel at the time when the maritime claim arose is liable for the claim and is the demise Charterer or the owner of the vessel when the arrest is effected: or (c) the claim is based on a mortgage or a charge of the similar nature on the vessel; or (d) the claim relates to the ownership or possession of the vessel; or (e) the claim is against the owner, demise Charterer, manager or operator of the vessel and is secured by a maritime lien as provided in Section 9. (2) The High Court may also order arrest of any other vessel for the purpose of providing security against a maritime claim, in lieu of the vessel against which a maritime claim has been made under this act, subject to the provisions of sub-section (1); Provided that no vessel shall be arrested under this sub-section in respect of a maritime claim under clause (a) of sub-section (1) of Sect ion 4. 33. It is not in dispute that the principal amount of US $ 471,552.42 claimed by the plaintiff against the 3rd defendant for supply of bunkers is already secured by the order of the Dubai Court since the said amount was deposited in proceedings taken there in May 2017. 34. Therefore, the essential claim in the present suit relates only to interest at 2% per month on the principal amount which according to the suit claim is US $ 512,615.09. 35. 34. Therefore, the essential claim in the present suit relates only to interest at 2% per month on the principal amount which according to the suit claim is US $ 512,615.09. 35. If one were to look at the definition of Maritime claim and its elaboration in Section 4, a claim for interest 011 a “principal amount towards supply of bunkers by a bunker supplier to a Charterer, is not a “Maritime claim” prima facie. 36. Under Section 5, the High Court may order arrest of any vessel which is within its jurisdiction for the purpose of providing security against a “Maritime claim” which is the subject of an admiralty proceeding. If the claim of the plaintiff is not in the nature of a “Maritime claim”, prima facie there could not have been an arrest of the vessel by the High Court in its admiralty jurisdiction. 37. Moreover such arrest under Section 5 (1) (a) can be made only if the person who owned the vessel at the time when the Maritime claim arose is liable for the claim and is the owner of the vessel when the arrest is -effected; or under Section 5 (1) (b), the demise Charterer of the vessel at the time when the Maritime claim arose is liable for the claim and is the demise Charterer or the owner of the vessel when the arrest is effected. 38. In the instant case, the 1st defendant contends that the vessel was on time charter with 3rd defendant when the bunker supply was made by the plaintiff to the vessel. They contend that even at the time when Bunker supply was made, the bunker delivery note No.12539 contained an endorsement of the Engineer of the vessel stating expressly that “the goods and/or services being hereby acknowledged, receipted for, and/or ordered solely for the account of the Charterers of M.V. Kiveli and not for the account of the said vessel or her owner. Accordingly, no lien or other claim against the said vessel can arise therefore”. It is their contention that the plaintiff was fully aware that the supply of bunkers was not on account of the vessel M.V. Kiveli or her owners and was only on account of the Charterers, and therefore the sole liability for the cost of the bunkers supplied is that of the Charterer (3rd defendant) and not the 1st defendant. 39. It is their contention that the plaintiff was fully aware that the supply of bunkers was not on account of the vessel M.V. Kiveli or her owners and was only on account of the Charterers, and therefore the sole liability for the cost of the bunkers supplied is that of the Charterer (3rd defendant) and not the 1st defendant. 39. Learned counsel for the plaintiff however sought to contend that notwithstanding the said endorsement on the bunker delivery note, the liability is that of the owners i.e. 1st defendant since the Master of the vessel was acting on behalf of the l” defendant when he took delivery of the bunkers. 40. This contention of the learned counsel for the plaintiff is not tenable for the following reasons: - Firstly because there was no privity of contract between the owners of the vessel and the plaintiff. There is thus no contractual liability on the part of the owners. - Secondly, as a matter of law, necessaries supplied to a ship though prima facie are presumed to be supplied on the credit of the ship, such presumption cannot be drawn in the face of material on record showing otherwise i.e. that the parties who supplied the necessaries did not do so at the instance of the owners, but of another person to whom they invoiced and looked alone for payment. 41. In Gulf Petrochem Energy Private Limited (3 supra), a Single Judge of the Bombay High Court considered the question whether any underlying liability against owners of the ship is necessary for her arrest for enforcement of a Maritime claim which does not give rise to a Maritime lien. In that case also bunker supply was made by the plaintiff toa vessel M.T. Valor whose Chief Engineer acknowledged receipt of the bunkers. The plaintiff asserted that the claim for bunkers supplied to the vessel is a Maritime claim, which can be enforced against the vessel in rem. This was disputed by the owners of the vessel who contended that at the time when bunker supplies were made, the vessel was under time charter to Bryggen Shipping International AS and therefore they were not liable. The Court relying on the owner of Stranship “HEIWA MARU” v. Bird and Co. This was disputed by the owners of the vessel who contended that at the time when bunker supplies were made, the vessel was under time charter to Bryggen Shipping International AS and therefore they were not liable. The Court relying on the owner of Stranship “HEIWA MARU” v. Bird and Co. (5) 1923 Rangoon 163, held that if there is material on record to indicate that necessaries were supplied not at the instance of the owners of the ship but another person, the owners of the ship cannot be made liable since there is no privity of contract between the persons who supplied the necessaries and the owners of the vessel. Quoting Heiwa Maru, it was held that prima facie, persons, who have advanced money for necessaries on behalf of a foreign ship are entitled to sue in rem, but that it is an essential element of all actionable claims for necessaries that there should be a debtor liable in personam, and that this personal liability mayor may not be enforceable by proceedings in rem against the ship. It held that one who supplies to a ship, upon the order of the Master, necessaries which it is not within the actual or apparent authority of the Master to order on the credit of the owner, has no right to recover against the owner by any proceedings whether in personam or in rem. It was concluded that before there can be an action ill rem, there must be personal liability on the part of the owner. The Bombay High Court also quoted that in the case of The Castlegate, where Lord Herschell stated that disbursements made by the Master on account of the ship must be limited to disbursements which he had a right to make on the credit of the owners of the ship and did not extend to disbursements made by him for purposes for which Charterers ought to have made provision, even though in a sense they might be said to have been made all account of the ship. 42. Similar view has been taken by Gujarat High Court in M V. Sea Renown and another v. Energy Net Limited (6) http://indiankanoon.org/doc11767287 wherein other judgments of Bombay High Court in Seandinavian Bunkering AS v. MV. 42. Similar view has been taken by Gujarat High Court in M V. Sea Renown and another v. Energy Net Limited (6) http://indiankanoon.org/doc11767287 wherein other judgments of Bombay High Court in Seandinavian Bunkering AS v. MV. Chopol-11 (7) Unreported judgment dt.11-7-2002 of the Bombay High Court and Raj Shipping Agencies v. M V. Bunga Mas Tiga and another (8) AIR 2001 Bombay 451 were cited and it was held that if bunkers were supplied not at the instance of the owners but at the instance of the Charterers, the owners were not liable. 43. In M.V. Flag Mersinidi v. Georim Oil Corporation (9) 2014 SCC Online Bombay 479, also a case of supply of bunkers to a vessel under charter to a third party, it was held that an action in rem against a vessel can be maintained only if there is an underlying obligation of the owner and an action in personam is maintainable against the owner; and in the absence of an averment that the owner had held out that they will be bound by the terms and conditions of the contract that had been entered into between the bunker supplier and the Charterer, the owner cannot be proceeded against. In that case too, like in the instant case, there was a rubber stamp to the delivery receipt of the bunkers expressly stating that the bunkers are accepted exclusively for account of the Charterers and not for the account of the vessel or her owner and no lien of other claim against the vessel or her owner can arise there from. The Court held that when the owner made it very clear that he is not going to pay for the bunker and the vessel is also not liable, the owner cannot be made liable. It held that owner can be held liable only if the owner holds out to the supplier that the time Charterer has been empowered to bind the credit of the owner of the vessel and that is also the Indian Law. 44. In SOCAR Turkey Petrol Enerji Dagitim Sav. Ve. Tic. It held that owner can be held liable only if the owner holds out to the supplier that the time Charterer has been empowered to bind the credit of the owner of the vessel and that is also the Indian Law. 44. In SOCAR Turkey Petrol Enerji Dagitim Sav. Ve. Tic. A.S. v. M.V. Amoy Fortune (IMO No.9583639) decided on 4-6-2018 by the Bombay High Court it was laid down that if the cause of action pleaded in the plaint is not that the bunkers were supplied at the request of the owners or under a contract with the owners or that the owner is liable in personam in respect of the claim; and if the plaintiff’s claim simply is that they had supplied bunkers to defendant vessel and the vessel is liable, having used or consumed the bunkers, there is no liability of the owners. It held that mere fact of supply of bunker to the vessel does not make the owners of the vessel liable in personum unless it is the owners or a person having authority to bind the owners who has entered into a contract with plaintiff for supply of bunkers. 45. Having regard to the above legal position and in view of the specific endorsement on the bunker delivery note No.12539 issued by the plaintiff’s agent, which is signed by the Engineer of the vessel M.V. Kiveli, that bunkers were received solely for the account of the Charterers and not for the account of the vessel or her owner, I hold the prima facie there is no liability of the owners of the vessel M.V. Kiveli (1st defendant), and if at all there is any liability, it would be that of the 3rd defendant only. 46. Consequently, I am of the opinion that the plaintiff had not made out a case for even initial arrest of the vessel M.V. Kiveli for the aforesaid reasons and the arrest of the vessel initially appears to be ‘wrongful’. 47. However, I am not expressing any opinion at this point of time about the liability of 3rd defendant, who has not entered appearance through counsel since it appears that notice to it, though ordered by the Court, has not yet been served. 48. 47. However, I am not expressing any opinion at this point of time about the liability of 3rd defendant, who has not entered appearance through counsel since it appears that notice to it, though ordered by the Court, has not yet been served. 48. In this view of the mater, I.A. No.2 of 2018 is allowed by vacating in toto the order dt 25-10-2017 in I.A. No.1 of 2017 as modified in I.A. No.5 of 2017 on 1-11-2017; and the amount of Rs.3,38,30,096/- deposited by the 1st defendant through its owner with the Registrar (Judicial) by way of Demand Draft bearing NO.346329 dt.31-10-2017 drawn on Kotak Mahindra Bank together with accrued interest thereon is directed to be refunded to the 1st defendant. 49. Point (a) is answered accordingly. Point No.(b): 50. As stated supra, this application No.3 of 2018 had been filed by the 1st defendant seeking a direction to the plaintiff to secure its claim for damages in Indian Rupees equivalent to US Dollars 60,236.01 together with interest @ 12% per annum thereon for alleged wrongful arrest of 1st defendant vessel and to deposit the same by way a Demand Draft in favour of the Registrar (Judicial), High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh. 51. This application is premised on the basis that there was no maritime claim or lien against the 1st defendant; that the arrest of the vessel was obtained maliciously, in bad faith and by gross suppression and misrepresentation of material facts; that the arrest was wrongful; that the 1st defendant suffered losses including but not limited to the loss of charter hire for the period for which the 1st defendant vessel was arrested and also incurred losses for idling including cost of bunkers for the period of idling and for legal costs. 52. It is contended by the 1st defendant that as a result of the order of arrest passed by this Court on 25-10-2017, the vessel was detained for a period of 4.50 days; that it was under Time Charter to one Itiro Corporation BVI at a charter rate of US $12,450 per day; that the 1st defendant was therefore treated as off hire for the period of detention; and the loss on this count is computed at US $54,262.96. A copy of the Party dt. A copy of the Party dt. 11-9-2017 as evidence by Fixture Recap’ as well as the Rider Clauses and Proforma Charter Party have been filed as Annexure-F. It is further contended that a further sum of US $5973.05 had to be reimbursed by the 1st defendant to the above Charterer towards bunker costs during the above period of idling. 53. Thus the total amount of US $60,236.01 was claimed as damages for loss incurred by the arrest of the vessel apart from continuing legal expenses and direction is sought to the plaintiff to deposit the same. 54. Reply affidavit has been filed by plaintiff to this application stating that it is not maintainable, that it is misconceived and deserve to be rejected with costs. 55. It is contended by plaintiff that unless the 1st defendant made a counter claim against the plaintiff, such an interlocutory order cannot be sought against the plaintiff by the 1st defendant in I.A. No.3 of 2018. It is also denied that the owners of the 1st defendant vessel suffered loss of the charter hire for the period of arrest or that there were any bunker costs on account of idling during the period of arrest. It is also alleged that the claim of the 1st defendant is a claim for un-liquidated damages and cannot be secured in the manner suggested by the 1st defendant in I.A. No.3 of 2018. 56. After noting the respective contentions, I am of the opinion that even assuming that the plaintiff had a case against the 3rd defendant Charterer of the 1st defendant vessel, prima facie, as already held by me, it did not have an arguable best case for claiming arrest. Therefore, the vessel’s arrest secured by the plaintiff on 25-10-2017, at a time when it was on Time Charter to a third party M/s. Itiro Corporation BVI under Charter Party dt. 11-9-2017, clearly prejudiced the 1st defendant as well as the said Charterer. 57. Since the 3rd defendant has not yet been served, it is not known when the Commercial Suit would be decided finally. 58. 11-9-2017, clearly prejudiced the 1st defendant as well as the said Charterer. 57. Since the 3rd defendant has not yet been served, it is not known when the Commercial Suit would be decided finally. 58. Since the existence of such Charter Party dt.11-9-2017 is prima facie corroborated by Annexure-F filed by the 1st defendant, and prima facie the vessel was detained from 25-10-2017 to 31-10-2017 i.e. 4.50 days, the claim of the 1st defendant for loss of charter hire for the said period at US $54,262.96 and incurring of bunker costs for this period of idling at US $5,973.05, cannot be said to be not probable. 59. In Videsh Sanchar Nigam Ltd. (1 supra), the Supreme Court had observed that while granting interim injunction, court is enjoined to impose as a condition that in the event of the plaintiff failing to prove the case set up and if damages are caused to the defendant due to the injunction granted by the court, it could impose condition for payment of damages caused to the defendant in the same proceeding without relegating the parties for a separate suit. 60. Since this porbable loss to defendant has arisen on account of a Court order of arrest of vessel obtained by the plaintiff, and since an act of the Court should do no harm (actus curiae neminenm gravabit) (10) Jang Singh v. Brij Lal: AIR 1966 SC 1631 , I am satisfied that, notwithstanding the contentions raised by the plaintiff, it is a fit, case to direct the plaintiff to secure the said amount of US $60,236.01 together with interest @ 12% per annum by way of deposit in the form of a Demand Draft in favour of the Registrar (Judicial), High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, within two weeks from today which shall stay in deposit, unless otherwise directed by this Court, till the deposal of the suit. 61. Point (b) is answered accordingly in favour of the 1st defendant/applicant in I.A. No.3 of 2018. 62. In the result: (a) I.A. No.2 of 2018 is allowed by vacating in toto the order dt.25-10-2017 in I.A.No.1 of 2017 as modified in I.A. No.5 of 2017 on 1-11-2017; and the amount of Rs.3,38,30,096/- deposited by the 1st defendant through its owner with the Registrar (Judicial) by way of Demand Draft bearing No.346329 dt. 62. In the result: (a) I.A. No.2 of 2018 is allowed by vacating in toto the order dt.25-10-2017 in I.A.No.1 of 2017 as modified in I.A. No.5 of 2017 on 1-11-2017; and the amount of Rs.3,38,30,096/- deposited by the 1st defendant through its owner with the Registrar (Judicial) by way of Demand Draft bearing No.346329 dt. 31-10-2017 drawn on Kotak Mahindra Bank together with accrued interest thereon is directed to be refunded to the 1st defendant; (b) I.A. No.3 of 2018 is also allowed and the plaintiff is directed to secure the amount of US $60,236.01 together with interest @ 12% per annum by way of deposit in the form of a Demand Draft in favour of the Registrar (Judicial), High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, within two weeks from today which shall stay in deposit, unless otherwise directed by this Court, till the disposal of the suit.