M/s. Angsley Investment Ltd. vs M/s. Turus Shipping Service and 3

Honourable Mr. Justice Ravi R. Tripathi

What is challenged in this appeal is order dated 10th October 2006 passed by the learned Single Judge of this Court, whereby the learned Singled Judge was pleased to hold that,

.. .. when the title of the applicant itself is in dispute, which requires details scrutiny of evidence and the applicant has acquiesced to the jurisdiction of this Court as early as in the year 2002 and belated application made after a period of two years for framing preliminary issue of jurisdiction of this Court is not accepted in view of the above decision of the Apex Court reported in Mayar (H.K.) Ltd. and Others Vs. Owners and Parties, Vessel M.V. Fortune Express and Others, . Thus, this Court is in full agreement with law laid down by M.V. Elisabeth and Others Vs. Harwan Investment and Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa, , at the same time facts of the present case clearly indicate that it is a mix question of fact and law which do not require adjudication at the threshold. For the same reasons, the oral order passed by this Court in other case, where in O.J.C.A. No. 83 of 2004 in Admiralty Suit No. 27 of 2001 passed by this Court is also not applicable. Therefore, other contentions of the applicant about determination of right of the plaintiff to prefer the present Admiralty Suit in absence of registration of partnership deed and requirement of fulfillment of Section 69 of the Partnership Act and applicability of rules framed by High Court of Bombay in case of Admiralty proceedings do not require any further scrutiny since the Court is satisfied on other grounds that the prayers of the applicant in this application cannot be granted.

(Emphasis supplied)

This Court is of the opinion that the learned Single Judge was right in holding that the applicant cannot be allowed to raise preliminary issue after lapse of two years.

The learned Single Judge has recorded that the applicant has acquiesced to the jurisdiction of this Court as early as in the year 2002 and raised preliminary issue only in the year 2004 by filing OJ Civil Application, which came to be rejected by impugned judgement. This Court is of the opinion that if the parties had proceeded with Admiralty Suit, even that would have been over by now.

At the request of learned advocate Mr. Y.N. Ravani it is clarified that non entertaining of this appeal will not prejudice the right of the applicant to agitate all the questions which are raised in this appeal, in the Admiralty Suit. With these observations this appeal is disposed of.