M.T. Felomena Lembo, a motor vessel flying a foreign flag, registered at a Port other than India has filed the present appeal being aggrieved by the judgment and order dated 23.2.2007 passed by the learned Single Judge of this Hon'ble Court in OJCA No.270 of 2005 in Admiralty Suit No.6 of 2004, whereby the learned Judge was pleased to dismiss the OJCA No.270 of 2005. The relevant portion of the order reads as under: “21. For the reasons stated above, OJ Civil Application No. 238 of 2005 in Admiralty Suit No. 6 of 2004; and OJ Civil Application No. 208 of 2006 in Admiralty Suit No. 5 of 2004 are hereby allowed. The original-plaintiffs are permitted to amend the Plaint and to produce on record the documents as prayed for. However, it is made clear that all the contentions which are available to the plaintiffs as well as the defendants inclusive of the contention on behalf of the defendants that the claim permitted to be amended would be time barred are kept open and allowing of this amendment shall not be construed that this Court has opined that the said claim would be within the time and even as agreed by the learned counsel appearing on behalf of the original- plaintiff that by allowing the amendment and enhancing the claim it shall not be construed that the same would be treated to be within time. All these questions are required to be considered subsequently and they are kept open. Consequently, the prayer of the original-defendants to discharge the Bank Guarantee, as prayed for in OJ CA No. 270 of 2005 cannot be granted at this stage, as, as of now the plaintiffs are permitted to amend the plaint and enhance the claim to the extent of Rs. 2,97,75,850 against which at present the security to the extent of Rs. 59,73,066. Accordingly, OJ CA No. 238 of 2005 in AS No.
6 of 2004 and OJCA No. 208 of 2006 in AS No.
5 of 2004 are allowed with above observations, and OJCA No. 270 of 2005 in AS No. 6 of 2004 is dismissed. However, there shall be no order as to costs.”
2. Learned advocate Mr. A.S. Vakil for the appellant submitted that the learned Judge has committed an error in allowing two civil applications, whereby the plaintiffs sought to enhance the claim in their respective Admiralty Suits and has committed an error in rejecting the OJCA No.270 of 2005. The learned advocate appearing for the appellant made it clear that, in substance, the challenge is not to the order whereby two civil applications are allowed enhancing the claim in the suits, because according to the learned advocate for the appellant, the interest of the appellant stands protected as the learned Judge has kept the question open to agitate all available points in final hearing of the Admiralty Suit. But so far as the rejection of OJCA No.270 of 2005 is concerned, whereby the learned Judge has not permitted the return of security, the present appeal has pressed into service.
3. Having found no substance in the submissions made by learned advocate appearing for the appellant, the appeal fails and the same is dismissed.
[RAVI R. TRIPATHI, J] shekhar [N.V. ANJARIA, J]