1. Mr.A.S.
Vakil, learned counsel appearing for the plaintiff mentioned to list the matter on Board as the parties have settled the issue outside the Court. Permission was granted. The matter is listed on Board today.
2. This Court (Coram: K.M.Thaker, J.) vide order dated 31.01.2012, upon hearing Mr.A.S. Vakil, learned counsel for the plaintiff, has passed the following order:-
"3. Mr.Vakil, learned advocate for the plaintiff states that the plaintiff is a company incorporated under the laws of the Korea and carries on business of supplying of electricity parts, equipments and other related products to sea-going motor vessels and also provides repair services etc.
4. The plaintiff, in terms of the request made by the 2nd defendant effected supply of parts and rendered repair services to the 1st defendant vessel at various ports. The same was acknowledged by the Chief Engineer of the 1st defendant vessel vide completion setting dated 14.01.2011. The plaintiff raised an invoice no.SW-1101003 dated 14.01.2011 for Korean Won (KW) 817,660,000/-. On failure to make payment, the plaintiff issued a request for payment vide letter dated 11.04.2011 to the 2nd defendant. In fact according to the plaintiff the 2nd defendant was defaulted in payment of dues to several creditors. As such an understanding was arrived at on 28.04.2011 and a notorial deed for contract for payment of debt was executed between the plaintiff, 2nd defendant, three joint guarantors one of whom is the Managing Director of the 2nd defendant and 11 other creditors. The said notorial deed provided for payment by the 2nd defendant each month from 31.05.2011 to 30.04.2012 which payment was to be distributed amongst the 12 creditors including the plaintiff in proportion to the amount of actual claim. The 2nd defendant made only one payment of KW 150,000,000/- and defaulted thereafter. After adjusting a sum of KW 196,580,000/- paid to the plaintiff, the amount due to the plaintiff was KW 621,080,000/-. At this stage the plaintiff approached this Court by way of Admiralty Suit No.12 of 2011 claiming money decree for USD5,87,309.67/Rs.2,64,28,905/-. The 1st defendant vessel was arrested by this Court by order dated 09.08.2011. However, on account of settlement/subsequent development, the said Admiralty Suit No.12 of 2011 was withdrawn vide order dated 12.08.2011. Despite settlement and further reduction of claim by the plaintiff, it was agreed that 2nd defendant would pay KW319,836,477/-. The 2nd defendant paid only KW165,354,000/- on 16.12.2011. A sum of KW154,482,477 i.e. USD1,35,808.77 still remains due and payable. It is under said circumstances that plaintiff has filed the present suit.
5. An affidavit in support of the plaint has been filed.
6. Accordingly it is submitted by the plaintiff that the supplies and repair services rendered to the 1st defendant vessel have been made for the operation and maintenance of the said vessel and is in the nature of necessaries supplied to the vessels within the meaning of Section 5 of the Admiralty Courts Act, 1861 and would constitute a maritime claim giving rise to maritime lien in favour of the plaintiff. In view of the aforesaid it is submitted that the plaintiff is entitled to proceed in rem against the 1st defendant vessel which is presently lying at the port of Kandla. It is submitted that if the 1st defendant vessel is not arrested, the same is likely to sail away into international waters and outside the admiralty jurisdiction of this Court. Hence the 1st defendant vessel be arrested.
7. On hearing Mr. Vakil, learned Advocate for the plaintiff and upon reading the plaint herein declared at Chennai on the 25th day of January, 2012 filed by the advocate for the plaintiff herein and the affidavit of Shri D.R.Raghunath, Constituted Attorney of the plaintiffs abovenamed, affirmed on the 25th day of January, 2012 AND UPON HEARING counsel for the plaintiff AND UPON THE PLAINTIFF giving an undertaking in writing to the Registrar of this Hon'ble Court to pay such sums by way of damages as this Hon'ble Court may award as compensation in the event of the defendants and/or any party sustaining prejudice by this order, and on further condition that the plaintiff shall deposit Rs. 5,00,000/- [Rupees Five Lakhs] in the Registry of this Court on or before 03-02-2012, I DO ORDER THAT the Registrar of this Hon'ble Court DO ISSUE a warrant for the arrest of the defendant vessel, M.V. BLUE STAR, along with her hull, engines, gears, tackles, bunkers, machinery, apparel, plant, furnitures, equipments and all appurtenances, at present lying at the Port and Harbour of KANDLA, GUJARAT 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 KANDLA and the Customs Authorities at KANDLA do effect the arrest, seizure or detention of the defendant vessel, M.V. BLUE STAR at the Port of KANDLA 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 Hon'ble Court a sum of US$1,35,808.77 with interest thereon @ 24% p.a. from the date of the institution of the suit till payment/realisation towards the satisfaction of the plaintiffs' claim in the suit and/or furnishing security to the satisfaction of the Registrar, High Court of Gujarat in the said sum of USD 1,35,808.77 with interest thereon @ 24% per annum from the date of the institution of the suit till payment/realisation the said Warrant of Arrest shall not be executed against the defendant vessel M.V. BLUE STAR.
8. The Port Officer and the Customs Authorities at KANDLA are directed to arrest the vessel M.V. BLUE STAR at present lying at Port of KANDLA 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 KANDLA shall render all assistance to the plaintiff or its representative in effecting the warrant of arrest on the vessel, M.V. BLUE STAR."
3. Mr.A.S.
Vakil, learned counsel appearing for the plaintiff submitted that the suit is settled out of the Court and he has instructions to withdraw the same unconditionally. Mr.Vakil, learned counsel prayed to pass appropriate order for refund of Rs.5,00,000/- (Rupees Five Lacs only) (deposited pursuant to order dated 31.01.2012) along with accrued interest and also for the refund of Court fees. Mr.Vakil, learned counsel submitted that the directions be issued to the Registry to issue two cheques for the aforesaid amount in favour of 'Mr.T. Poornam'.
4. Though served, none appeared for the respondents.
5. In view of the above, the plaintiff is permitted to withdraw the suit unconditionally without effective hearing. The suit stands disposed of as withdrawn.
6. The Registry is directed to issue cheque towards refund of applicable Court fees in favour of 'Mr.T. Poornam'. The Registry is also directed to issue the cheque towards refund of Rs.5,00,000/- (Rupees Five Lacs only) (deposited pursuant to order dated 31.01.2012) together with accrued interest in favour of 'Mr.T. Poornam' as early as possible, preferably on or before 11.04.2012.
7. The plaintiff is permitted to communicate this order to all concerned authorities by fax communication and all the concerned authorities are directed to act upon the same. Notice is discharged. Direct service is permitted by 03.04.2012. No order as to costs.
(R.M.CHHAYA, J.) Hitesh