Monjasa Dmcc vs MV Nihat-M

R.M. Chhaya, J. (Oral)—Learned Advocate Ms. Paurami Sheth mentioned this matter before Hon''ble the Chief Justice for urgent circulation today and such permission has been granted. Accordingly, this suit is taken up for hearing for urgent interim orders as the Defendant Vessel is likely to sail away.

Learned Counsel for the Plaintiff submitted that the Defendant Vessel has used and/or consumed and/or benefited from the said bunkers and/or have availed of the same for prosecuting her voyages. Learned Counsel for the Plaintiff further submitted that the Arbitration proceedings were initiated between the parties and final award was passed on 14th September, 2016. However, the Plaintiff has not been paid till date for the outstanding amount. In fact, the Plaintiff was left with no option but to incur costs for arbitration proceedings amounting to USD 77,710.68. Despite there being a final award from the Tribunal, the owners of the Defendant Vessel are wilfully neglecting to make payment to the Plaintiff for the supplies made to the Defendant Vessel under the outstanding invoice. The Plaintiff thus has not been paid in full with respect of the said bunkers supplied and under the US final award. The Plaintiff has therefore been constrained to file the present Suit. Learned Counsel has further submitted that the arbitration proceedings against the owner of the Defendant Vessel were in personam proceedings. The Plaintiff further submits that a cause of action in rem, being different character from a cause of action in personam, does not merge in a judgment in personam, but remains available to a person who has it so long as, and to the extent that, such judgment remains unsatisfied and the principle equally applies arbitral awards. The learned Counsel also submitted that as reliably learnt by them, the Defendant Vessel has presently at Kandla and likely to leave immediately upon completion of loading/unloading and hence urgent arrest of Defendant Vessel is required to be granted.

Upon hearing Ms. Paurami Sheth, learned Advocate for the plaintiff and upon reading the plaint herein declared at Ahmedabad on 8-11-2016 filed by the advocate for the plaintiff herein and the affidavit of Mr. Raju Prabhatbhai Desai, the Authorised Signatory of the Plaintiff above named affirmed on 8-11-2016 and upon hearing counsel for 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 defendants 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, MV NIHAT-M (IMO No. 9185815) along with her hull, engines, gears, tackles, bunkers, machinery, apparel, plant, furnitures, equipments and all appurtenances, at present lying at the Port at Kandla 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 and the Customs Authorities at Kandla do effect the arrest, seizure or detention of the defendant vessel MV NIHAT-M 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 Court principal amount of USD 44,920.30 plus interest amounting to USD 36,946.24 from due date of invoice till date, costs and allowances awarded in arbitration proceedings being USD 77,710.68 and USD 10,000 for cost of litigation in India aggregating USD 169,577.22 with further interest at the rate of 2% per month from date of suit till its realization as per particulars of claim the said Warrant of Arrest shall not be executed against the defendant Vessel MV NIHAT-M.

The Port Officer and the Customs Authorities at Kandla are directed to arrest the vessel MV NIHAT-M 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 MV NIHAT-M.

It is open for the plaintiff''s advocate to communicate the above order by fax message/e-mail at their own cost and the authorities are directed to act on fax/e-mail message with ordinary copy of the order of this Court.

The undertaking filed by Mr. Raju Prabhatbhai Desai, the Authorised Signatory of the plaintiff is taken on record.

Notice to the defendant returnable on 15-11-2016. 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.

Office is directed to serve the warrant of arrest on the Master of the vessel MV NIHAT-M or through the agent of the vessel and send copy thereof to Port and Customs Authorities at Kandla.

Direct service is permitted today.