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2025 DIGILAW 679 (BOM)

Rana Mukherjee v. Sale Proceeds of M. V. Malaviya

2025-04-04

ABHAY AHUJA

body2025
ORDER : 1. This application has been filed by the Applicant/Plaintiff seeking a summary judgment/decree against the Defendant under Order XIII-A of the Code of Civil Procedure, 1908 (“CPC”) directing the Defendant to pay to the Plaintiff the sum of Rs.66,19,434.38 (Rupees Sixty Six Lakhs Nineteen Thousand Four Hundred and Thirty Four and Thirty Eight Paise Only) along with interest at the rate of 12% per annum on the principal amount of Rs.62,69,434.38 from the date of filing of the Suit till payment and / or realization plus costs of Rs.3,50,000/- towards legal expenses incurred by the Applicant /Plaintiff, as per the particulars of claim at Exhibit F to the plaint. 2. The Applicant/Plaintiff is a crew member, who served as a master of the vessel known as M.V.Malaviya 9 which was under the ownership of one GOL Offshore Limited at the time when the Applicant / Original Plaintiff was employed on the said vessel in the rank of Master. Mr.Kamat submits that the owners of the Defendant vessel in the document submitted to the Office of the Official Liquidator have admitted that the Applicant served as a Master on the vessel M. V. Malaviya 9. The Applicant /Plaintiff is a Master mariner holding Indian CDC (Continuous Discharge Certicate-cum-Seafarer’s Identity Document) No. CL 45568. The owners of the vessel, M. V. Malaviya 9, GOL Offshore Limited had entered into a Contract of Employment dated 11 th May 2016 with the Applicant / Original Plaintiff. Under the said Contract of Employment, the Applicant / Original Plaintiff was employed as a Master on board the vessel M. V. Malaviya 9 for a period of three months. The Plaintiff was entitled to receive a sum of Rs.8,30,000/- (Rupees Eight Lakhs Thirty Thousand Only) per month as wages for serving on board the vessel M.V. Malaviya 9 as a Master. It is submitted that the Applicant / Original Plaintiff had received two lumpsum payments from GOL Offshore Limited in the sum of Rs.25,05,361.49 and Rs.5,48,174.33 aggregating to a sum of Rs.30,53,535.82 on 11 th November 2016 and 23 rd November 2016 respectively. Thereafter, the Applicant /Original Plaintiff has not received his entire wages / salary for the months that he was employed on vessel M.V. Malaviya 9. The claim is for payment of wages while serving on the vessel for the period 14 th May 2016 to 14 th April 2017. 3. Thereafter, the Applicant /Original Plaintiff has not received his entire wages / salary for the months that he was employed on vessel M.V. Malaviya 9. The claim is for payment of wages while serving on the vessel for the period 14 th May 2016 to 14 th April 2017. 3. Mr.Kamat has taken this Court through the pay-slip of the Applicant/Plaintiff as well as the agreement between the ship owner and the Plaintiff dated 11 th May 2016 which indicates that the Plaintiff was the master entitled to the following per month : PARTICULARS (per month) AMOUNT IN INR Basic Salary 33,605.00 Ex-Gratia 3,28,126.00 Brazil Allowance 1,80,000.00 D.P.Allowance 75,000.00 Leave Pay – Contract 97,412.00 Overtime Allowance 35,857.00 Special Allowance 80,000.00 Total 8,30,000.00 4. Mr.Kamat has also taken this Court through the Exhibit C at page 33 which is a copy of the Continuous Discharge Certificate (“CDC”) which indicates the period of engagement of the Plaintiff between 14 th May 2016 t0 14 th April 2017 at the Port of Rio de Janeiro and also that during this period the Plaintiff was the Master of the vessel M.V.Malaviya 9. The said page has been stamped by the Chief Engineer of M.V.Malaviya. 5. Mr.Kamat submits that in the pay-slip at Exhibit A, there is also a Brazil allowance which was precipitated as M.V.Malaviya 9 had been stranded in Brazilian seaport near Rio de Janeiro city since September 2015. That the Consulate General of India, Sao Paulo vide an email dated 22 nd October 2016 addressed inter alia to GOL Offshore Limited stated that they had received a complaint from a Brazilian Company Brasbunker Participacoes SA, regarding the crew stranded onboard the said vessel anchored offshore at the Brazilian seaport near Rio de Janeiro city. The said email inter alia stated that the crew members on board the said vessel M.V. Malaviya 9 had been staying onboard the said vessel in miserable and pathetic conditions without basic amenities as even services like removal of garbage and sewage tanks from the said vessel had not been provided and that some of the crew members needed immediate medical help as they were suffering from depression and anxiety. Further, the complaint also stated that the crew members had not been paid their salaries and were not in a position to leave the said vessel. Further, the complaint also stated that the crew members had not been paid their salaries and were not in a position to leave the said vessel. Mr.Kamat has drawn this Court’s attention to the said email communication dated 22 nd October 2016 from the Consulate General of India, Sao Paulo addressed to the Manager of the ship owner company (now in liquidation) which indicates the humanitarian situation that was being faced by the crew of Malaviya 9 and calling upon the vessel owners to make immediate arrangements to provide necessary assistance and for evacuation of the crew members on board. 6. That, by a written notice and instructions dated 11 th April 2017 from one Basch & Rameh, the Constituted Attorney of GOL Offshore Limited, who were acting under the Power of Attorney dated 25 th October 2016 pursuant to orders of this Court, the crew and the Plaintiff were instructed to co-operate and take steps in berthing the said vessel M.V. Malaviya 9 at the shipyard Enavi, Rio de Janeiro, Brazil. 7. The vessel Malaviya 9 and Malaviya 29 which reportedly had been anchored at Guanabara Bay off Brazillian sea coast with eight crew members which Mr.Kamat states included the Master of the vessel viz. the Plaintiff / Applicant herein. Mr.Kamat submits that, subsequently, the said Constituted Attorneys made arrangements for the repatriation of the crew including the Applicant /Original Plaintiff and the Applicant / Original Plaintiff was signed off from the vessel M. V. Malaviya 9 on 14 th April 2017, which is evidenced from the relevant pages of the Continuous Discharge Certificate – cum - Seafarer’s Identity Document. 8. It is submitted that, accordingly, a sum of Rs.62,69,434.38 (Rupees Sixty Two Lakhs Sixty Nine Thousand Four Hundred and Thirty Four and Paise Thirty Eight Only) being the outstanding wages / salary payable to the Plaintiff under the said Employment Agreement for the months of May 2016 to April 2017 is due and payable to the Applicant / Original Plaintiff as under : Sr. No. Month of Employment Wages in INR 1 14th May 2016 to 31st May 2016 5,80,956.60 2 1st June 2016 to 30th June 2016 8,29,938.00 3 1st July 2016 to 31st July 2016 8,29,938.00 4 1st August 2016 to 31st August 2016 8,29,938.00 5 1st September 2016 to 30th September 2016 8,29,938.00 6 1st October 2016 to 31st October 2016 8,29,938.00 7 1st November 2016 to 30th November 2016 8,29,938.00 8 1st December 2016 to 31st December 2016 8,29,938.00 9 1st January 2017 to 31st January 2017 8,29,938.00 10 1st February 2017 to 28th February 2017 8,29,938.00 11 1st March 2017 to 31st March 2017 8,29,938.00 12 1st April 2017 to 14th April 2017 4,42,633.60 TOTAL 93,22,970.20 LESS amount of Rs.25,05,361.49 and Rs.5,48,174.33 received by the Applicant from the owners of the Defendant vessel on 11th November 2016 and 23rd November 2016, respectively 30,53,535.82 TOTAL OUTSTANDING 62,69,434.38 9. It is submitted by the Applicant that despite repeated requests/reminders from the crew on board the said vessel and various other authorities the legitimate wages of the Applicant/Plaintiff could neither be recovered from the Defendant vessel nor the vessel owners. 10. That, Company Petitions seeking winding up of GOL Offshore Limited i.e., the owners of the vessel, M.V. Malaviya 9, had been filed in this Court and by an order dated 5 th May 2017, Company Petition No. 756 of 2017 filed by Exim Import Bank of India was admitted. Subsequently, this Court by an order dated 4" December 2017, passed an order for winding up of GOL Offshore Ltd. and appointed the Official Liquidator for winding up of the said Company. That, one DVB Group Merchant Bank (Asia) Ltd. had filed Admiralty Suit No. 41 of2015 for enforcement of its first priority registered mortgage over the vessel M. V. Malaviya 9 and for recovery of monies lent and advanced by them to GOL Offshore Ltd. under the mortgage deed. 11. That, by an order dated 5 th May 2017, this Court confirmed the sale of the said vessel M.V. Malaviya 9 for a sum of USD 7,894,737 and directed the Prothonotary / Senior Master / Admiralty Registrar of this Court to execute a Bill of Sale and all relevant documents in behalf of the said DVB Group Merchant Bank (Asia) Ltd. upon satisfaction of receipt of the entire purchase consideration. 12. 12. It is submitted that pursuant to sale of the vessel on 5 th May 2017 in Notice of Motion (Lodging) No.1067 of 2017 in Admiralty Suit No. 41 of 2015 for USD 7,894,737, the sale proceeds have been deposited and are lying with the office of the Prothonotary & Senior Master, High Court, Bombay and the Suit has been filed against the sale proceeds of the Defendant vessel that has been deposited in this Court. 13. Mr.Kamat submits that the Applicant has filed the present Suit for recovery of his wages for his employment on the Defendant vessel M. V. Malaviya 9. That, the Applicant was entitled to file a Suit for recovering his wages on or by 14 th April 2020. However, on account of the COVID-19 pandemic, the Hon'ble Supreme Court had been pleased to exclude the period from 15 th March 2020 till 28 th February 2022 for the purposes of calculating the period of limitation and granted a period of 90 days from 1 st March 2022 in the event the period of limitation expired between 15 th March 2020 till 28 th February 2022. That, the Applicant has filed the present Suit on 20 th May 2022 and hence, the Plaintiff’s claim is not barred by law of limitation. 14. Mr.Kamat, learned Counsel for the Applicant / Plaintiff submits that the Defendant had filed its written statement on 3 rd January 2024. That, the Defendant in is written statement has not made out any case much less any substantial and /or credible defense to dispute the Suit claim of the Applicant / Original Plaintiff. That, the contents of the plaint have been dealt with by the Defendant in paragraphs no.15 to 19 of the written statement. That, the Defendant in paragraphs no.16 and 17 of the written statement (whilst dealing with paragraphs no.5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19 and 20 of the plaint) has simplicitor stated that : (i) they were not aware of the correctness of the contents of the said paragraphs in the plaint and (ii) that the ex-directors of the Plaintiff had submitted details of unpaid salaries of their employees which do match the Plaintiff’s claim. 15. 15. Mr.Kamat submits that since the Defendant has no real prospect for successfully defending the claim as this is a Suit in rem that has been filed against the sale proceeds of the vessel M.V.Malaviya 9, this application has been filed under Order XIII-A of the CPC seeking a summary judgment and submits that, therefore, this Court allow the application and decree the Suit in favour of the Plaintiff. 16. Mr.Kamat has submitted that considering that the Suit is a Suit filed in rem, this Court, in view of the documents establishing claim of the Plaintiff before this Court allow the application, since the crew members’ wages are a maritime lien under Section 9(1)(a) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 (the “Admiralty Act”) and also rank first in priorities under Section 10(1)(a) of the Admiralty Act. 17. Pre-empting the arguments on behalf of the Official Liquidator, on a query in general by this Court, Mr.Kamat has drawn this Court’s attention to a decision of a Single Judge of this Court in the case of Angre Port Private Limited vs. Tag 15 (IMO 9705550) and Another, (2022) 1 AIR Bom R 689 where in a similar application filed under Order XIII-A of the CPC was allowed by this Court (Coram : B. P. Colabawalla, J.), it is pointed out that in the said decision, this Court has inter alia observed that the principles of res judicata or constructive res judicata would not apply, where a claim has been preferred by a claimant against a ship owner as an action in personam and against a vessel as an action in rem, in as much as, the parties to the two Suits are different viz. the Defendants are different, one is the ship owner and the other is the ship itself, whereas for res judicata to apply the parties have to be the same. 18. The Official Liquidator has filed a reply. the Defendants are different, one is the ship owner and the other is the ship itself, whereas for res judicata to apply the parties have to be the same. 18. The Official Liquidator has filed a reply. From the reply it is gathered that by order dated 5 th May 2017 passed in Company Petition No.756 of 2014 presented by M/s. Exim Import Bank of India and Company Petition No.119 of 2015 presented by Punjab National Bank (International) Limited, the Official Liquidator, High Court, was appointed as provisional liquidator and subsequently by order dated 4 th December 2017 passed by the Company Court in Company Petition No.756 of 2014, the owner of the Defendant vessel viz. GOL Offshore Limited was ordered to be wound up and Official Liquidator has beenappointed. That, by order dated 27 th April 2018 passed in Official Liquidator’s Report No.83 of 2018, the Official Liquidator had invited the claims from workers and creditors of the company by publishing advertisement in newspaper and the last date for filing the claim was 6 th June 2018. That, in response to the said advertisement, the Official Liquidator received about 1000 claims from seafarers, employees and creditors of the company (in liquidation) as under : Status of adjudication of claims of Seafarers, Workers and Banks Sr. No. Category No. of Claims Lodged No. of Claims admitted No. of Claims rejected Amount Admitted 1 Seafarers, Workers and Staff 529A 859 794 62 31,28,87,685 530 271 255 16 31,42,07,966 Total 1130 1049 78 62,70,95,651 2 Banks (Secured Creditors) 14 7 3 12,20,89,12,729 19. Mr.Kamat has submitted and the Official Liquidator has also recorded that the Plaintiff / Applicant also filed / lodged his affidavit of proof of debt / claim on 16 th December 2017 before the Official Liquidator and claims have been adjudicated on 4 th December 2019. It has been submitted that the Applicant’s claim had been allowed only to the extent of Rs.333/- against a claim of Rs.67,50,000/-. Mr.Kamat submits that he has instructions to give up the said claim and that since the Suit has been filed against the sale proceeds of the M. V. Malaviya 9, the said action is an action in rem, which can be entertained by the Admiralty Court. 20. Mr.Kamat submits that he has instructions to give up the said claim and that since the Suit has been filed against the sale proceeds of the M. V. Malaviya 9, the said action is an action in rem, which can be entertained by the Admiralty Court. 20. The Official Liquidator has also in paragraph 7 of its reply stated that in view of the decision of this Court in the case of Board of Trustees of the Port Mumbai - Raj Shipping Agencies vs. Barge Madhwa and Another with connected matters , 2020 SCC Online Bom 651 the Bombay High Court has held that the Admiralty Act is a special Act which prevails over the Companies Act and no permission is required for commencing a Suit under the Admiralty Act or to continue any proceeding which is pending under the Admiralty Act and that Section 10 of the Admiralty Act will prevail over Section 529 and 529A of the Companies Act in the matter of determination of priorities. That, the Court winding up the company would not have the jurisdiction to entertain or dispose of an action in rem against a ship filed in a High Court and only the Court which has been conferred with admiralty jurisdiction under the Admiralty Act can entertain the same. 21. Mr.Moorjani, learned Counsel, appearing for the Official Liquidator of the company in liquidation has pointed out that the vessel M.V.Malaviya 9 had been sold out in Admiralty Suit No.41 of 2015 in a Suit filed by DVB Group Merchant Bank (Asia) Ltd. prior to the winding up order and the sale proceeds are lying with the Prothonotary & Senior Master of this Court. Mr.Moorjani also submits that the Official Liquidator has no objection if the Plaintiff gives up the claim filed against the company in liquidation. 22. I have heard the learned Counsel. 23. As noted above, this application has been filed seeking summary judgment. 24. The Applicant / Plaintiff’s claim arises from Employment Contract entered into between the owners of the vessel and the Applicant / Plaintiff has served on board the Defendant vessel from the date of joining till the date of repatriation. 22. I have heard the learned Counsel. 23. As noted above, this application has been filed seeking summary judgment. 24. The Applicant / Plaintiff’s claim arises from Employment Contract entered into between the owners of the vessel and the Applicant / Plaintiff has served on board the Defendant vessel from the date of joining till the date of repatriation. The Articles of Agreement, relevant pages of the Continuous Discharge Certificate, email correspondence evidence that the Applicant / Original Plaintiff was employed on board the vessel M. V. Malaviya 9 from 14 th May 2016 to 14 th April 2017 and had not been paid any monies towards his salary from 23 rd November 2016. That, in response to the Applicant /Original Plaintiff’s Suit claim, no material has been brought to my notice to refute the fact that the Applicant served on board the vessel for the period claimed in the plaint and/or that the Applicant was paid for the entire period of service. 25. The Applicant’s Suit claim relates to services rendered to the vessel M.V.Malaviya 9, as the Master, pursuant to agreement entered into by the owner of the said vessel with the Applicant / Plaintiff. The Applicant’s claim is a “maritime lien” within the meaning of Section 9(1) and “maritime lien” within the meaning of Section 4(1)(o) and (w) of the Admiralty Act. Consequently, the Applicant / Plaintiff had a maritime lien / maritime claim against the vessel M. V. Malaviya9 and /or her sale proceeds in terms of Section 5(1) and (2) of the Admiralty Act, 2017. The Applicant’s dues are payable under the contract of employment and due to the Applicant having served on board the vessel as Master after the vessel was abandoned by her owners. The Applicant, in law, is entitled to recover his unpaid wages by proceeding against the vessel and/or her sale proceeds and is entitled to claim interest on the unpaid salary. 26. There has been no dispute as such to the claim of the Plaintiff. The extract of the CDC and the salary slip have been duly signed and stamped and also annexed to the plaint. 27. 26. There has been no dispute as such to the claim of the Plaintiff. The extract of the CDC and the salary slip have been duly signed and stamped and also annexed to the plaint. 27. As has been noted above, the Official Liquidator has in the reply clearly stated that the vessel M. V. Malaviya 9 belonging to the company (in liquidation) has been sold out in Admiralty Suit No.41 of 2014 prior to the order of winding order for USD 7,894,737 and the sale proceeds of the same have been deposited and are lying with the office of the Prothonotary & Senior Master, High Court, Bombay. From a perusal of the said affidavit and as also noted above, it emerges that although several claims have been lodged by the seafarers, workers and banks with the Official Liquidator of the company (in liquidation), the Official Liquidator has cited the decision of Board of Trustees of the Port Mumbai - Raj Shipping Agencies vs. Barge Madhwa and Another with connected matters (supra) in paragraph 7 of the affidavit and quoted the concluding paragraphs 209 and 210 thereof, which have been mentioned in the said affidavit as 100 and 101, which clearly suggests that the Official Liquidator has no objection if the Admiralty Court exercises jurisdiction in the matter. The jurisdiction of the Admiralty Court as far as the maritime claims against the vessel in question prevails over the Companies Act and such a claim can only be entertained by the Admiralty Court having been conferred the jurisdiction under the Admiralty Act which is a special Act. The Official Liquidator, accordingly, has not opposed the jurisdiction of this Court nor raised any objection opposing the Suit or the application on merits. 28. I have also perused the documents annexed to the plaint and I am satisfied that the conditions of Order XIII-A of the CPC are met as there is no real prospect of any one successfully defending the claim nor is there any other compelling reason why the claim of the Plaintiff/Applicant should not be allowed before recording of oral evidence. 29. 29. Considering the fact that the Plaintiff / Applicant has given up the claim made before the Official Liquidator, though admitted, and also in view of the submissions made on behalf of the Official Liquidator, it would not be necessary to go into the aspect of res judicata of the claim but suffice it to say that considering that the claim made in this Suit is not against the owner of the vessel but against the sale proceeds of the vessel, which continues to be an action in rem, an adjudication in personam against the owner of the vessel cannot attract the principle of res judicata to an action in rem against the sale proceeds of the vessel in the present Suit. In fact, in the case of Board of Trustees of the Port Mumbai - Raj Shipping Agencies vs. Barge Madhwa and Another with connected matters (supra) this Court in paragraph 51.7 has clearly held that all those claimants who are unable to recover their claims from the sale proceeds, will have to pursue their claims in the liquidation as unsecured creditors. However, in the facts of this case as noted above, the Applicant has given up its claim in liquidation. 30. Having perused the Interim Application seeking summary judgment and also having heard the learned Counsel appearing for the Applicant / Plaintiff as well as for the Official Liquidator and of course subject to removal of office objections and obtaining a registered number to the Interim Application, apropos the above discussion, I am of the view that the Applicant / Plaintiff is entitled to a summary judgment under Order XIII-A of the CPC. The application is allowed. 31. Accordingly, let there be a decree and order in favour of the Plaintiff / Applicant against the sale proceeds of the Defendant – vessel for a sum of Rs.66,19,434.38 along with interest at the rate of 12 % per annum on the principal amount of Rs.62,69,434.38 from the date of filing of the Suit till payment and /or realization plus costs as per the Plaintiff’s Particulars of claim which is at Exhibit F to the plaint. 32. The Suit is decreed but kept pending for determination of priorities and for pay out, for which the Applicant / Plaintiff may take out an appropriate application. 33. Let registered number be obtained within a period of two weeks.