W.A. No. 2086 of 2010. Case: Kinship Services (P) Ltd. Vs Fithaly Fernando. High Court of Kerala (India)
| Case Number | W.A. No. 2086 of 2010 |
| Counsel | For Appellant: E.K. Nandakumar & A.K. Jayasankar Nambiar (Sr. Advocates), K. John Mathai, P. Benny Thomas, P. Gopinath & Thushara James, Advs. and For Respondents: T.R. Aswas & D.P. Renu, Advs. |
| Judges | Mr. C.N. Ramachandran Nair & Mr. C.K. Abdul Rehim, JJ. |
| Issue | Arbitration and Conciliation Act, 1996 - Section 8; Constitution of India - Article 226; Merchant Shipping Act, 1958 - Sections 145, 145(1), 245(2), 445, 445(1), 445(2) |
| Citation | 2012 (3) KLJ 585, 2012 (3) KLT 579 |
| Judgement Date | June 22, 2012 |
| Court | High Court of Kerala (India) |
Judgment:
C.N. Ramachandran Nair, J.
1. The appellant is a Shipping Company which has filed this Writ Appeal challenging the findings of the learned Single Judge that the Magistrate Court before which an application under S. 145 of the Merchant Shipping Act, 1958 (hereinafter referred to as the Act for short) has been filed by the 1st respondent, the Captain of the Ship, for arrears of wages, has jurisdiction to order arrest and detention of the ship and her equipments or to demand security for the claim amount in terms of S. 245(2) of the Act. The facts leading to the controversy are the following: The first respondent, the Captain of the Appellant's Ship, and several other seamen filed applications under S. 145 of the Act before the Magistrate Court, Kochi for arrears of wages due from the Appellant-Shipping Company. However, apprehending disposal of the ship and her equipments to defeat the claim of the 1st respondent, he approached this Court by filing W.P.(C) under Art. 226 of the Constitution of India by invoking the admiralty jurisdiction of this Court for arrest and detention of the Appellant's Ship for securing 1st respondent's claim for wages. The learned Single Judge following the decision of the Supreme Court in M.V. Elizabeth & Ors. v. Harwan Investment and Trading Pvt. Ltd., Hanoekar House Swatontapeth Vasco-de-Gama, Goa, reported in 1993 Supp (2) SCC 433, held that admiralty jurisdiction of the High Court can be invoked only in respect of Foreign vessels and not against an Indian ship. Accordingly, the main relief sought for in the W.P.(C) was declined. However, the learned Single Judge by referring to S. 445(2) of the Act held that the Magistrate Court has power to order distress and sale of ship or her equipments thereon for recovery of wages payable to seamen or to demand security for the claim amount pending award by Court. It is against this judgment, the appellant has filed this Writ Appeal.
2. We have heard learned counsel for the appellant and learned counsel for the first respondent and learned Standing Counsel appearing for the remaining respondents.
3. The appellant, admittedly, has no vessel or any movables within the jurisdiction of Magistrate Court, Kochi and therefore there is no likelihood of any adverse orders being passed against the appellant based on observation or direction of the learned Single Judge. However, appellant's counsel submitted that the appeal is filed in principle to challenge the legal...
To continue reading
Request your trial