Libertatem Magazine

Bombay HC Allows Arrest of Vessel Due to an Irrefutable Claim of Non-Payment of Dues

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The present suit, along with the Judge’s Order was moved ex-parte. The urgent relief sought was the arrest of the Defendant Vessel, on an apprehension that if not arrested, it may sail out of the jurisdiction of this Court, without payment of Plaintiff’s dues.

Brief Facts

The present suit was a decree against the Defendant Vessel and its arrest, condemnation and sale to satisfy the Plaintiff’s aggregate claim of Rs.30.61,360/-, which included the principal outstanding claim along with interest @18% p.a. from the due date of invoice and further interest @12% p.a. till its realisation, cost of litigation and also poundage as per the particulars of claim. Such a claim arose as the Plaintiff had supplied necessaries to the Defendant Vessel at the instance of Defendant No.2 (Manager of the vessel) and those services were rendered to the credit of the Defendant Vessel, which benefitted from the said necessaries as supplied by the Plaintiff. However, the Plaintiff had only been partly paid in respect of those necessaries supplied. The present suit had been filed to recover those unpaid amounts. 

Plaintiff’s Submissions

The Counsel for the Plaintiff stated that the Registry had produced the Caveat Register, and there was no caveat against arrest concerning Defendant’s Vessel. Hence, it was submitted by the Plaintiff that this constituted an irrefutable claim against the Defendant’s Vessel. 

It was asserted that if the Defendant Vessel would be permitted to sail, then the Plaintiff would not have any legal recourse to recover the due amounts from the Defendant and its security, therefore, be lost forever Eventually, the proceedings would be rendered infructuous.

Defendant’s Submissions

In the plaint and the annexures thereto, Defendant No.2 had, prima facie, admitted that the payment of due claims would be made. Moreover, the Defendants had earlier made part payment concerning the Plaintiff’s claim. Hence, a prima facie case for the arrest of the Defendant’s vessel could be made out. 

Consideration by Court

In light of the submissions put forth by both the parties, the Court opined that the claim in the Plaint was a maritime claim. It was considered that they were dues of the Plaintiff for supplying necessaries to the Defendant’s Vessel at the request of Defendant No.2. Therefore, such claim would squarely fall within the meaning of a maritime claim as defined in Section 4(1)(l) of the Admiralty (Jurisdiction & Settlement of Maritime Claims) Act, 2017.

The Court found, in the present circumstances, that there was a cause of action in favour of the Plaintiff and that the vessel being at Mumbai anchorage, was within the admiralty jurisdiction of this Court. Hence, the Court considered that the Plaintiff had thus made out an ample prima facie case. 

The Judge’s order was seen and it seemed to the Court to be in the proper form and with the appropriate contents. Hence, the undertakings contained in the Judge’s Order were accepted as undertakings to the Court and therefore, the order was made in terms of the Judge’s Order in the present case’s facts and circumstances and was signed separately.

It was also considered that the Plaintiff’s advocate undertook to serve the warrant of arrest on the Defendant Vessel within the next six weeks.

Court’s Directions

Keeping in view that the balance of convenience would lie with the Plaintiff, to whom, almost irreversible prejudice would be caused if reliefs were denied. Accordingly, it was ordered and directed by the Court to arrest the Defendant Vessel along with her hull, engines, gears, tackles, apparel, furniture, appurtenances, plant and machinery at present at the anchorage at the Port of Mumbai or wherever she was within the territorial waters of India until the satisfaction of the plaintiff’s full claim.

Moreover, after service of this order of arrest, if the arrested vessel will not be released by furnishing security or bail amount within 8 weeks of service, or an application for vacating the order of arrest will be filed, or the vessel will be found abandoned by the person-in-charge of the vessel, then in such an event, if the Plaintiff would apply, the office of the Sheriff of Mumbai shall present a Sheriff’s report for auctioning the vessel within 14 days from the date of knowledge of abandonment of vessel or from the date of receiving communication from plaintiff’s advocate.

It was further directed that the Plaintiff would be at liberty to forward a copy of the communication from the office of the Sheriff of Mumbai along with a copy of this order to the Port and Customs authorities.

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