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2022 DIGILAW 120 (GUJ)

Seros Shipping Private Limited v. Nand Hazira

2022-01-20

BHARGAV D.KARIA

body2022
JUDGMENT : BHARGAV D. KARIA, J. 1. Heard learned advocate Ms. Paurami Sheth for the plaintiff and learned advocate Mr. Shashvata Shukla appearing on behalf of learned advocate Mr. Tirth Pandya for the defendant. 2. Learned advocate Ms. Sheth submitted that the Plaintiff had entered into Bare Boat Charter dated 12.01.2019 with the owner of the Defendant Vessel, Nand Aparna and Nand Ananya. As per the agreement, the Plaintiff was to pay in all Rs. 4,00,00,000/- on behalf of the Defendant Vessel owner towards crew wages earlier appointed by the owner and expenses for dry dock of all three vessels, which amount was to be adjusted against the charter hire payable by the Plaintiff to the owner. The Plaintiff has maintained the account in the name of the owner, Simcement Private Limited, Mumbai. The Plaintiff paid in all a sum of Rs. 4,39,90,331/- towards crew wages and dry dock expenses. The Plaintiff further spent for Insurance Premium and fuels to the tune of Rs. 14,85,643/- and Rs. 15,35,665/- respectively. Thus the Plaintiff has in all spent Rs. 4,70,11,639/- on behalf of the Defendant Vessel as well for Nand Aparna and Nand Ananya. As against that the plaintiff is required to pay Rs. 3,75,80,400/- to the Owner of the Defendant Vessel, Nand Aparna and Nand Ananya towards charter hire calculated from 28.01.2019 (Date of delivery of the Vessels) till 20.06.2021 (Date of termination of BBC), excluding charter hire for days for which the Defendant Vessel, Nand Aparna and Nand Ananya were under arrest on account of default of Owner of the said Vessels pursuant to clause 17(b). As per lateral defect Clause, the Plaintiff is required to adjust the amount spent by it against Charter hire payable to the Owner of the Defendant Vessel under BBC, and accordingly, the Defendant Vessel Owner is liable to pay to the Plaintiff a sum of Rs. 94,31,239/- after adjusting the amount payable to it by the plaintiff. The present suit is being filed inter alia for recovery of unpaid amount due which claim has arisen out of Agreement related to use and hire for the Defendant Vessel against the defendant Vessel and her Owner which is maritime claim against the Defendant Vessel and inter alia prayed for arrest of the Defendant Vessel. 3. Learned advocate Ms. The present suit is being filed inter alia for recovery of unpaid amount due which claim has arisen out of Agreement related to use and hire for the Defendant Vessel against the defendant Vessel and her Owner which is maritime claim against the Defendant Vessel and inter alia prayed for arrest of the Defendant Vessel. 3. Learned advocate Ms. Sheth further submitted that the Owner of the Defendant Vessels vide Clause 17(b) of Bare Boat Charter Agreement agreed to indemnify the Plaintiff from all the loss, expenses, damages including charter hire of the arrest during the defendant vessel, Nand Aparna and Nand Ananya under arrest on account of a claim/s against the Owner of the Defendant Vessel. The Defendant Vessel has been arrested solely on the default of the Owner of the Defendant Vessel due to which the Plaintiff has suffered the loss of profit. The Plaintiff reserves its right to claim the same as and when the loss is quantified. The Plaintiff has filed OJCA No. 1 of 2022 in AS No. 16 of 2021 for Nand Aparna and OJCA No. 1 of 2022 in AS No. 17 of 2021 for the Defendant Vessel and Nand Ananya to join and intervene for securing its interest and payment of expenses spent post arrest order and not included the said claim in present Suit. The Plaintiff, however, reserves its right to include the said claim in present Suit in case said Applications are not entertained or the Plaintiff has not been paid the said amount. Thus the Plaintiff craves leave under order 2 Rule 2 to include any other and further claim. 4. Having heard the learned advocate Ms. The Plaintiff, however, reserves its right to include the said claim in present Suit in case said Applications are not entertained or the Plaintiff has not been paid the said amount. Thus the Plaintiff craves leave under order 2 Rule 2 to include any other and further claim. 4. Having heard the learned advocate Ms. Sheth for the plaintiffs and having perused the plaint herein declared at Ahmedabad on 17.01.2022 filed by the advocate for the plaintiff herein and the affidavit of Kunjan Mysorewala, Authorised Representative of the Plaintiff above named affirmed on 17.01.2022 and upon hearing counsel for the plaintiff and upon the Plaintiff giving an undertaking in writing to the Registrar of this Court to pay such sums by way of damages as this Court may award as compensation in the event of the defendants sustaining prejudice by this order, I do order that the Registrar of this Court do issue a warrant for the arrest of the Defendant Vessel Nand Hazira-(IMO No. 8845456) along with her hull, engines, gears, tackles, bunkers, machinery, apparel, plant, furniture's, equipments and all appurtenances, at present lying at Hazira Port within the Indian territorial waters and that the Warrant of Arrest be executed at any time of the day or night or on Sundays or holidays and I do further order that the Port officer and the Customs Authorities at Hazira Port do effect the arrest, seizure or detention of the defendant Vessel Nand Hazira-(IMO No. 8845456) at present lying Hazira Port within the Indian territorial waters or such other place wherever she may be within the territorial waters of India and I do further order that in the event of the defendant and/or those interested in her depositing in this Court the principal amount of Rs. 94,31,239/- and legal cost and expenses aggregating a sum of Rs. 1,01,81,239/- together with further interest on Rs. 94,31,239/- at the rate of 12% p.a. from date of suit till realisation as per particular of claim, the said Warrant of Arrest shall not be executed against the defendant Vessel at present lying at Hazira Port within the Indian territorial waters. The Plaintiff is granted leave under order 2 Rule 2 of C.P.C. 5. At this stage, it is pointed out that the Defendant Vessel has been directed to be sold for Rs. The Plaintiff is granted leave under order 2 Rule 2 of C.P.C. 5. At this stage, it is pointed out that the Defendant Vessel has been directed to be sold for Rs. 2,35,00,000/- (Rupees Two Crore Thirty-Five Lakh) as per the order dated 6th January, 2022 passed by this Court. Learned advocate Mr. Shashvata Shukla appearing on behalf of learned advocate Mr. Tirth Pandya submitted that the amount of sale proceeds could not be deposited in the account of the Punjab National Bank as the successful bidder deposited the Indian rupees instead of USD. It was therefore, submitted by learned advocate Mr. Shukla that the successful bidder has already transferred the amount in USD by SWIFT in the account of Punjab National Bank. 6. In view of the above facts, the arrest order is not required to be effected as Sale Proceeds of the Defendant Vessel to be deposited by the successful bidder will be considered as security for the claim made in this suit and the amount shall be disbursed as per the provisions of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017. 7. Learned Court Commissioner has submitted a report dated 19th January, 2022 fortifying the above submission made by the learned advocate Mr. Shukla. 8. Notice to the Defendant returnable on 28th January, 2022. The Plaintiff may serve the above order by Email to the owner of the Defendant Vessel at its last email ID available with the Plaintiff.