Notice of Motion (L) No. 617 of 2013 in Admiralty Suit (L) No. 230 of 2013. Case: Yusuf Abdul Gani Vs Geowave Commander. High Court of Bombay (India)
| Case Number | Notice of Motion (L) No. 617 of 2013 in Admiralty Suit (L) No. 230 of 2013 |
| Counsel | For Appellant: Mr. V. K. Ramabhadran, Adv. And For Respondents: Mr. P. S. Pratap, Senior Advocate, along with Mr. Ashwin Sinha, Instructed by Ms. T. R. Agarwal, Adv. |
| Judges | S. J. Kathawalla, J. |
| Issue | Code of Civil Procedure, 1908 - Rule 11 |
| Judgement Date | April 17, 2013 |
| Court | High Court of Bombay (India) |
Judgment:
S. J. Kathawalla, J.
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The above Notice of Motion is taken out by the Applicant/Original Defendant--GEOWAVE COMMANDER ("GC") for vacating ex parte order of its arrest dated 15th March 2013. The Applicant/Defendant has pointed out that the Plaintiff's specific case in the Plaint is that they have a claim against Reflect Geophysical Pte. Ltd. ("Reflect") for unpaid charter hire under a Charterparty dated 1st October 2012 concerning the Plaintiff's vessel Orion Laxmi ("OL") which was chartered to Reflect as time charterer and further Reflect is the owner of the Defendant Vessel--GC and consequently the Plaintiff alleged that it is entitled to arrest the Defendant Vessel--GC. According to the Defendant, the entire claim of the Plaintiff rests on the allegation that the Defendant vessel is owned by Reflect which is incorrect. The Defendant vessel is owned by Master and Commander AS, Norway, a Company incorporated under the Laws of Norway and not Reflect. It is submitted that the Plaintiff admittedly has no claim against Master and Commander AS and is not entitled to arrest the Defendant vessel. The Defendant vessel was chartered by its owner, Master and Commander AS to Reflect under a Bareboat Charterparty dated 29th June 2012 for a period of three years at a charter hire rate of US $ 14,090.00 per day. According to the Applicant/Original Defendant, there are several blatantly false, misleading and incorrect statements made in the Plaint, in particular that the Plaintiff corresponded with the owners of the Defendant vessel and that Mr. Mathew is the CEO of the Owners (Paragraph 8); that the Defendants were obliged to pay charter hire; that the Defendants confirmed that the Plaintiff could take legal action (Paragraph 9); that the Defendants failed and neglected to pay the Plaintiff's invoices (Paragraph 10); that the Defendant vessel failed to pay charter hire (Paragraph 11). It is therefore submitted in the application that the Plaintiff has no right of arrest of the Defendant vessel GC which is not owned by Reflect but only chartered by them as stated above.
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Mr. Pratap, the Learned Senior Advocate appearing for the Applicant/Defendant has submitted that the specific case with which the Plaintiff has approached this Court as set out in the Plaint is that Reflect is the owner of the Defendant vessel (Paragraph 3); Defendant vessel failed to pay charter hire to the Plaintiff (Paragraphs 10 and 11) and Plaintiff's claim is a maritime claim against the Defendant vessel (Paragraph 11). It is submitted that each of these statements is false to the knowledge of the Plaintiff with a view to mislead this Court into granting an ex parte order of arrest dated 15th March 2013 of the Defendant vessel GC. It is submitted that Reflect is not the owner of the Defendant vessel GC which is owned by Master and Commander AS, Norway. It is Reflect who has failed to pay charter hire to the Plaintiff under charter party dated 1st October 2012 for the vessel OL and not the Defendant vessel GC. The Plaintiff's maritime claim is therefore against Reflect and arises under a charterparty between the Plaintiff and Reflect for charter of the vessel OL. It is not a maritime claim against the Defendant vessel. Mr. Pratap submitted that on this ground alone, the ex parte order of arrest is liable to be and should be vacated without considering the merits as the Plaintiff has come to Court with a false case and made false, incorrect and misleading statements in the plaint and has no right to be heard.
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Mr. Pratap has further submitted that the Plaintiff has falsely stated in paragraphs 3 to 10 of the Plaint that the owners of the Defendant vessel have admitted liability in respect of the Plaintiff's claim. This is incorrect since liability has been admitted by Reflect as is apparent from the correspondence and invoices annexed to the plaint and Reflect is not the owner of the Defendant vessel. According to Mr. Pratap, once this is accepted, the order of arrest must be vacated.
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Mr. Pratap has submitted that in order to ascertain whether in an action in rem filed in the Admiralty jurisdiction of this Court, the Plaintiff is entitled to an order of arrest of the Defendant vessel, the following needs to be established:
(a) The Plaintiff has a maritime claim;
(b) The vessel in respect of which the Plaintiff has a maritime claim;
(c) The party liable in personam in respect of the maritime claim; and
(d) The party liable in personam is the owner of the vessel sought to be arrested.
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Mr. Pratap has submitted that as stated in the judgment in the case of m.v. Elizabeth AIR 1993 SC 1014 in paragraph 84, no Indian statute defines a maritime claim. It is for this reason that the Court looks at the Arrest Convention which lists various maritime claims for which a vessel can be arrested. Following the judgment in m.v. Sea Success, (2004) 9 SCC 512 and the Full Bench Judgment of this Court in Golden Progress (2007) 2 BCR 1, the 1999 Arrest Convention is followed in matters of arrest of ships. The Plaintiff has alleged in paragraph 11 of the Plaint that his claim is for use and hire of the vessel. The claim of the Plaintiff is therefore a maritime claim under Article 1 (f) of the 1999 Convention ("any agreement relating to the use and hire of the ship whether contained in a charterparty or otherwise").
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As regards the issue as to the vessel in respect of which the Plaintiff has a maritime claim, Mr. Pratap submits that the Plaintiff's maritime claim is for use or hire of the vessel OL because the Plaintiff had chartered OL to Reflect under a time charterparty dated 1st October 2012 which is an agreement relating to the use or hire of the ship. Thus the Plaintiff has a maritime claim in respect of the ship OL. Mr. Pratap submits that as the Plaintiff's claim is for use and hire of the vessel under a charterparty dated 1st October 2012 with Reflect as the Time Charterer, the party liable in personam for the charter hire claimed by the Plaintiff in the suit is Reflect. However, since Reflect is not the owner of the vessel GC which is sought to be arrested and which is indeed arrested, the party liable in personam is not the owner of the...
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