JUDGMENT - Mrs. Manohar Sujata, J.:—This is a Chamber Summons taken out by the plaintiff to the suit and defendant to the counter-claim for excluding from the suit the counter-claim filed by the defendants. The present suit has been filed by the plaintiff, a company incorporated in the Federal Republic of Germany and having its registered office at Hamburg to recover a sum of DM.45,365 which is equivalent to Rs. 2,99,409, together with interest thereon in respect of various spare parts supplied and repairs carried out to the 1st defendant vessel at Hamburg and elsewhere. The suit was filed under the Admiralty Jurisdiction of this Court when the 1st defendant vessel was in Bombay. The vessel arrived in Bombay on 12-11-1986. This suit was filed on 27-11-1986 and the 1st defendant vessel was arrested under an order of 28th November, 1986 of this Court. The defendants furnished a security in the form of Bank Guarantee in the sum of Rs. 4,50,000/- as per the order of arrest and secured the release of the vessel under instrument of release dated 24-12-1986 issued by the Admiralty Registrar of this Court. The vessel thereafter left the Port of Bombay.

2. The 1st defendant is the vessel while the 2nd defendant is the owner of the vessel. The 2nd defendant has its registered office at Limassol, Cyprus. The defendants have filed their written statement and counter-claim on or about 4-8-1987. In the counter-claim the defendants have claimed damages equivalent to Rs. 36,72,801.90 from plaintiff for defective repairs to the suit ship and for alleged improper and negligent manner in which repairs to the generator of the 1st defendant vessel were carried out at Hamburg and Bremen by the plaintiff.

3. The present Chamber Summons is taken out by the plaintiff for excluding the counter-claim. According to the plaintiff, the counter-claim does not arise under the admiralty jurisdiction of this Court. They also submit that the claim under the counter-claim has arisen outside the jurisdiction of this Court and have further submitted that since the counter-claim is for unliquidated damages and will require separate and independent evidence, there is no common issue in the suit and the counter-claim and the two, therefore, should not be tried together.

4. This High Court was set up as a Court of Admiralty under the Colonial Courts of Admiralty (India) Act, 1891. It is now laid down by a number of decisions of this Court see A.I.R. 1983 Bom. 178, (Dimitrios Paizis v. Motor Vessel “Nicos”)1, 62 Bom.L.R. 995 (Kamalakar Mahadev Bhagat v. The Scindia Steam Navigation Co. Ltd.)2, that as the Court of Admiralty this Court exercises the same jurisdiction as was exercised in England by the Court of Admiralty under the Admiralty Courts Act, 1861. Under section 4 of the Admiralty Courts Act, 1861 the High Court of Admiralty shall have jurisdiction over any claim for the building, equipping, or repairing of any ship, if at the time of the institution of the cause the ship or the Proceeds thereof are under arrest of the Court. It is not necessary to examine the other sections of this Act, save and except that under section 35 the jurisdiction conferred by the Act of the High Court of Admiralty may be exercised either by proceedings in rem or by proceedings in personam. The counter-claim filed by the defendants who are the plaintiffs to the counter-claim does not strictly fall within the admiralty jurisdiction of this Court. Is it however maintainable under any other provisions of law, in this Court?

5. In the case of (The Cheapside)3, reported in 1904 Law Reports Probate Division 339 the owners, master and crew who were all foreigners outside the jurisdiction of the English Court, commenced an action in rem in the Admiralty Division against the defendants who were the owners of a British ship for salvage services rendered to the British ship in Northern Russia, outside the ordinary jurisdiction of the English Court. The defendants, that is to say, the owners of

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