MONJASA A/S Plaintiff(s) Versus M V PERISTIL (IMO NO 9519626) Defendant(s) ===================================================== Appearance :
MS PAURAMI B SHETH for Plaintiff(s) : 1, MR DAKSHESH MEHTA None for Defendant(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 19/04/2012 ORAL ORDER (1) The suit came to be mentioned by Mr.Dakshesh Mehta, learned advocate for the defendant and hence, the same is placed before this Court for further orders.
(2) By order dated 16.04.2012 this Court passed the following order:
(1) Heard Ms.Paurami Sheth, learned counsel for the plaintiff and perused reading the plaint herein declared at Ahmedabad on 14.04.2012 filed by the advocate for the plaintiff herein and the affidavit of Shri Raju Desai, Constituted Attorney of the plaintiff above named, affirmed on 14.04.2012.
(2) Ms.Paurami Sheth, learned counsel for the plaintiff, submitted that the claim is with respect to supply of the bunkers i.e. the necessaries which is supplied on the faith and credit of the defendant vessel. Ms.Sheth further submitted that the plaintiff is commencing the Arbitration proceedings and the present suit is filed as well to secure the claim in Arbitration. In support of the above submission, Ms.Sheth has relied upon the decision of Bombay High Court reported in Islamic Republic of Iran V/s. M.V. Mehrab & Ors. and in the case of J.S. Ocean Linner LLC V/s. Golden Progress and also of this Court in Admiralty Suit No.10 of 2010 CROFT SALES AND AS/4/2012 2/5 ORDER DISTRIBUTION LTD V/s. M.V. Basil & others confirmed by the Division Bench of this Court.
(3) Having heard Ms.Sheth, learned counsel for the plaintiff, on going through the record and considering the prima facie case established by 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 defendant and/or any party 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, M.V. PERISTIL along with her hull, engines, gears, tackles, bunkers, machinery, apparel, plant, furnitures, equipments and all appurtenances, at present lying at the Port at Magdalla 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 at Magdalla and the Customs Authorities at Magdalla do effect the arrest, seizure or detention of the defendant vessel, M.V. PERISTIL at the Port of Magdalla 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 a sum of USD 2,49,424.12 (United States Dollar Two Lakhs Forty Nine Thousand Four Hundred and Twenty Four and Twelve Cents only) with further interest at the contractual rate of 24% per annum from 06.04.2012 till payment/realization; the said Warrant of Arrest shall not be executed against the defendant vessel M.V. PERISTIL.
(4) The Port Officer and the Customs Authorities at Magdalla are directed to arrest the vessel M.V. PERISTIL at present lying at Port of Magdalla within the territorial waters of India and to keep the vessel under arrest until further orders of this Court. It is further ordered that the Port Officer and the Customs Officer at Magdalla shall render all assistance to the plaintiff or its representative in effecting the warrant of arrest on the vessel M.V. PERISTIL.
(5) It is open for the plaintiff's advocate to communicate the above order by fax message and/or Email at their own cost and the authorities are directed to act on fax and/or AS/4/2012 3/5 ORDER Email message.
(6) The undertaking filed by Shri Raju Desai, Constituted Attorney of the plaintiff.
(7) Notice to the defendant returnable on 24.04.2012. It is made clear that it will be open for the defendant to approach this Court even prior to the returnable date with adequate notice to the plaintiff.
(8) Office is directed to serve the warrant of arrest on the Master of the Vessel M.V. PERISTIL or through the agent of the vessel, Overseas Maritime Agencies Private Limited also by Email service and send copy thereof to Port and Customs Authorities at Magdalla.
(9) Direct service is permitted today.
(3) Today, Mr.Mehta, learned advocate for the defendant states that the defendant desires to file a pursis as well as an undertaking before this Court on basis of which the earlier order dated 16.04.2012 be modified. Ms.Sheth, learned advocate for the plaintiff, has been served with the copies of pursis as well as undertaking, which are taken on record.
(4) Both parties i.e. the plaintiff as well as the defendant have no objection if the following order is passed:
"1.learned advocate for the defendant submits that the owners of the defendant vessel are agreeable to deposit in this Court a demand draft of the Hongkong and Shanghai Banking Corporation, Mumbai for the sum of US Dollars 251,884.19 which amount includes the plaintiff's AS/4/2012 4/5 ORDER claim and interest at the rate of 24% per annum from 06.04.2012 until the date of deposit drawn in favour of the Registrar, High Court of Gujarat by 23.04.2012.
2. The owners of the defendant vessel through their Constituted Attorney, Shri Rohit Harikrashna Tamboli, have made an undertaking dated 19.04.2012 to deposit the said sum in this Court on or before 23.04.2012.
3. learned advocate for the defendant has also filed pursis dated 19.04.2012 and prayed for release of the defendant vessel from the arrest order dated 16.04.2012 as per undertaking between the parties. The pursis dated 19.04.2012 along with the undertaking of Shri Rohit Harikrashna Tamboli, Constituted Attorney of the defendant, are ordered to be taken on record.
4. In view of purshish filed by the defendant, the owner of the defendant, is permitted to furnish security by demand draft of the Hongkong and Shanghai Banking Corporation, Mumbai for the sum of US Dollars 251,884.19 drawn in favour of the Registrar, High Court of Gujarat without prejudice to their rights and contentions by 23.04.2012 and the Registry is directed to accept the same. The Registry is further directed to retain the said security till the disposal of the suit or any further order and AS/4/2012 5/5 ORDER invest the same. Meanwhile, on the basis of understanding between the parties and the undertaking of Shri Rohit Harikrashna Tamboli, Constituted Attorney of the defendant, the arrest order dated 16.04.2012 is vacated and the vessel is released from the arrest order dated 16.04.2012.
5. The aforesaid order is passed without prejudice to the rights and contentions of the parties.
6. It is open for the defendant's advocate to communicate the above order by fax message at their own cost and the authorities are directed to act on fax message and release the vessel forthwith arrested in pursuance of the order dated 16.04.2012.
Direct service today is permitted.
Sd/-
[R.M.CHHAYA, J ] *** Bhavesh*