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Judgment
Arijit Banerjee, J
The Court : This affidavit of arrest has been filed in an admiralty suit filed by the plaintiff praying for, inter alia, arrest of the defendant vessel, MV Han Xin, flying the flag of Hong Kong. I am told that the said vessel is presently lying at the Kolkata Port, within the Admiralty Jurisdiction of this Court.
After hearing learned Counsel for the plaintiff, in view of the urgency involved, I dispense with the requirement of complying with Section 12A of the Commercial Courts Act and admit the plaint subject to scrutiny.
Mr. S.K. Bajoria, learned Advocate-on-Record for the plaintiff is appointed Receiver for the purpose of paying deficit Court fees within a week from the date when normalcy in the Court work resumes. In default of such payment, the suit and the application shall stand dismissed automatically without further reference to Court.
The plaintiff claims to have entered into a contract of carriage with the defendant vessel for carrying a consignment of goods comprising Mid-Speed Press Line from Kobe in Japan to Mumbai, India. The plaintiff claims that the goods were loaded on board the defendant vessel at Kobe in perfect condition and the Master of the vessel being satisfied with the condition of the goods issued "clean" Bill of Lading. However, when the goods were discharged at the Port of Mumbai, it was noticed that a substantial portion of the consignment was damaged. Various surveys have been undertaken by the plaintiff and the plaintiff assesses the loss suffered by reason of the damage to the goods at approximately Rs.69 crores. The plaintiff also claims interest thereon and in the plaint the plaintiff has claimed a decree for about Rs.75.34 crores. The plaintiff's claim for compensation has been rejected by the defendants. It is submitted that the owners of the said vessel who are responsible for the damage to the concerned goods have no other property in India and in the event the said vessel is permitted to sail away from within the jurisdiction of this country, she is unlikely to return to the Indian territorial waters in future. Hence, arrest of the vessel is prayed for.
There is no doubt that the claim of the plaintiff is a maritime claim within the meaning of Section 4 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017. Considering the materials on record, I am of the view that the plaintiff has made out a prima facie case and the balance of convenience also lies in favour of passing an order of arrest of the defendant vessel which is otherwise likely to leave Indian territorial waters within the next few days.
Accordingly, there shall be an order directing arrest of the defendant vessel, MV Han Xin along with her tackle, hull, engine, equipment, apparels, furniture and all movables lying on board.
The Marshall of this Court is directed to forthwith arrest the said vessel, MV Han Xin, along with her tackle, hull, engine, equipment, apparels, furniture and all movables lying on board.
The Marshall shall forthwith communicate this order to the concerned Port Authorities, Customs Authorities and Coast Guard Authorities by FAX message or electronic mail.
Upon payment of the necessary charges by the plaintiff, the Marshall shall also serve a copy of the arrest order including a copy of the affidavit of arrest on the Master of the defendant vessel. The Marshall's communication shall be affixed on the MAST of the vessel.
This order will continue unconditionally till 28th April, 2020. If in the meantime the plaintiff files an undertaking in terms of Section 11 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, to the effect that the plaintiff shall compensate the defendant vessel and/or the owners and parties interested therein for any loss or damage which may be suffered by the defendant as a result of the arrest and for which the plaintiff may be found liable, by reason of the arrest having been found to be wrongful or unjustified or excessive security having been demanded by the plaintiff, the order of arrest shall continue until further orders. In the event of the plaintiff's failure to file such undertaking, this order shall stand vacated automatically on 28th April, 2020.
It is further clarified that in the event the defendant deposits the amount claimed by the plaintiff in the suit as security with the Registrar, Original Side of this Court, this order of arrest of the defendant vessel shall stand automatically vacated.
The Port Authorities, Customs Authorities and Commandant, CISF are directed to render all necessary assistance to the Marshall to implement this order.
The Marshall and all concerned including the Port Authorities, Customs Authorities and Coast Guard Authorities shall act in terms of communication of this order to be made by the Marshall to them.
The application for arrest is made returnable on 28th April, 2020.