M/s Mayar (HK) Limited v. M/s Mayar (HK) Limited & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24.07.2008 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE K.VENKATARAMANO.S.A.NOS.411 to 413 of 2003Owners and parties interestedin the vessel MV Neetu nowlying at the port ofVisakhapattinam,are represented by its Master.. Appellant inall the appealsVs.1.M/s.Mayar (HK) Limited, Lippo Centre, Tower-1, 604, 6th Floor, 89, Queensway, Admiralty Hongkong rep. by its Vice President, C.P.Vohra2.M/s.Vilson Shipping Pvt. Ltd., A-3, World Trade Avenue, Tuticorin, rep. by its Branch Manager Gasper Silva.. Respondents inall the appeals These O.S.As. have been preferred under Order XXXVI Rule 11of Original Side Rules against the order and decreetal order inApplication Nos.2221, 2396 and 2397 of 2003 in C.S.No.371 of2003, dated 18.07.2003 respectively. For Appellant : Mr.R.SrinivasFor Respondents: Mr.S.Vasudevan - - - - https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT(The judgment of the Court was made by M.CHOCKALINGAM, J.)This judgment shall govern these three appeals. 2.It was a suit filed by the respondents herein, seekingdamages for a sum of Rs.1,14,95,000.00 equivalent to US2,42,000.00 calculated as per the prevailing exchange rate of USD1 = Rs.47.50 together with interest at the rate of 18% p.a. fromthe date of this plaint till date of realisation and also seekingfor arrest and sale of the vessel MV NEETU in as is where iscondition, presently in Indian Waters at the Port ofVisakhapatnam and also for a direction to adjust the saleproceeds against the suit claim with interest and costs. 3.At the time of initiation of proceedings, the plaintiffsfiled A.No.2221 of 2003 for arrest of the vessel and the saidapplication was countered by the defendant. On enquiry, thelearned Single Judge has found that there was prima face prooffor the claim to an extent of Rs.21,21,000/- and there was adirection to furnish bank guarantee and accordingly, it wasfurnished by the appellant and the same was accepted by theCourt. Aggrieved over the said order, an appeal has beenpreferred by the defendant. Apart from that, an order of thearrest of the ship was originally granted at the time ofinitiation of the suit. Aggrieved over the same, the appellantfiled A.No.2396 of 2003 for vacating the said order. He alsofiled an another application in A.No.2397 of 2003, where hesought for security to be furnished by the plaintiffs, since thearrest of ship originally sought for was not justified. 4.All the applications were taken up for consideration bythe learned Single Judge. In A.No.2221 of 2003, there was adirection for furnishing security to an extent of Rs.21,21,000/-,wherefrom O.S.A.No.411 of 2003 has arisen. So far as the othertwo applications were concerned, they were dismissed. Aggrievedover the same, the other two appeals, namely O.S.A.Nos.412 and413 of 2003, have been taken up by the defendant. All these threeappeals were taken up for consideration by this court.5.At the time when the matter was taken up before thisCourt, the learned counsel for the respondents/plaintiffs broughtto the notice of the Court that at the time when ApplicationNo.2221 of 2003 for arrest of vessel was taken up forconsideration, the Court has found that prima facie there wasliability to an extent of Rs.21,21,000/- and therefore, adirection was given by the Court for furnishing security.Accordingly, the defendant had furnished bank guarantee to thatextent. While the matter stood thus, he has preferred an appeal https://hcservices.ecourts.gov.in/hcservices/ challenging the said order. The learned counsel would further addthat though the said bank guarantee was furnished before theCourt, it was only for a stipulated period and thereafter, it wasnot extended and thus, there was breach of the order andtherefore, the circumstances warranted for initiating contemptproceedings. Accordingly, contempt proceedings were made inContempt Petition No.634 of 2007 and the same is also pendingbefore the learned Single Judge. The contemnor has not appearedbefore the Court. The learned counsel further reiterated that thebank guarantee originally given was not extended. On the basis ofthe bank guarantee originally furnished, the interim order ofarrest of ship was also annulled and the ship was allowed to moveand the ship was also released. Under these circumstances, nowthe respondents/plaintiffs are without remedy in respect ofRs.21,21,000/-, which according to the learned Single Judge,prima facie proof was also available and hence necessary ordershave got to be passed. 6.The learned counsel for the appellant would submit that itis true, pursuant to the order passed in application No.2221 of2003, bank guarantee was given to the extent of Rs.21,21,000/-.It was stated in the last hearing that there was communicationaddressed to the defendant/appellant and the counsel has alsoreceived a fax message to the effect that the bank guarantee wasnot extended and the extension of bank guarantee would be donewithin a period of two or three months and under thesecircumstances, it has got to be considered by this Court.Further, the learned counsel would submit that the order ofdismissal of both the application Nos.2396 and 2397 of 2003 hasgot to be set aside.7.After looking into the materials available and inappraisement of facts and circumstances of the case, the Court isof the considered opinion that all the three appeals have got tobe dismissed. So far as O.S.A.No.411 of 2003 is concerned, therewas an application for arrest of vessel in respect of the claim.The learned Single Judge has found that there was prima facieproof in respect of the claim of Rs.21,21,000/- and there was adirection to furnish bank guarantee. Accordingly, the defendanthas given the same, but it was not extended and there was abreach of the order. When the matter was taken up, the learnedcounsel for the appellant/defendant fairly conceded that it wasnot extended. Under these circumstances, contempt petition hasbeen filed by the respondents herein and hence it has got to beproceeded with. Hence the O.S.A.No.411 of 2003 has got to bedismissed and the proceedings have got to be proceeded with inthe contempt petition.8.So far as Application No.2396 of 2003 was concerned, itwas filed to vacate the order of arrest of ship. Now, at thisjuncture, it does not arise for consideration and so far asApplication No.2397 of 2003 was concerned, security was askedfor, since the interim order of arrest was passed without any https://hcservices.ecourts.gov.in/hcservices/ justification. This Court is unable to consider the other twoappeals, since the Court cannot appreciate the conduct of theappellant what has been evidenced and recorded above. Under thesecircumstances, leaving it open to the parties to raise theirrespective contentions on the merits of the matter at the time oftrial before the learned Single Judge, the Court is of theconsidered opinion that all the three appeals have got to bedismissed. Accordingly, all these three appeals are dismissed. Nocosts. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkToThe Sub Asst. Registrar,(O.S.)High Court, Madras.+1cc to Mr.S.Vasudevan, Advocate Sr 40075SSV (CO)km/5.8.O.S.A.NOS.411 to 413/2003