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IN THE HIGH COURT OF BOMBAY
G.H. Guttal, J.
Bank of Maharashtra.... Plaintiffs.
Versus
M.V. ’River Ogbese’, a Vessel others.... Defendants.
Notice of Motion No. 2109 of 1989 in Admiralty Suit No. 4 of 1989, decided on 6-9-1989.
Advocates appeared :
Virag Tulzapurkar, i/by Little Co., for the plaintiff to show-cause.
Shekhar Shetye, for defendants Nos. 1 2.
Sanad Mukerjee with A.V. Vernekar, for the Deft. No. 3 in support.
Miss Reshma Ruparel, for defendant No. 13.
Rule 941-Obligation to give undertaking-Such obligation not restricted only to ex parte order -Held, obligation to give undertaking applies to all cases either ex parte order or order after hearing the other side.
The words "interim reliefs" mean reliefs granted to last during such intermediate time, interval, interlude or meantime, as exists during the pendency of the suit. Such reliefs whether granted exparte or upon hearing the defendant have a common character which is marked by their temporary provisional intermediate nature. The argument of counsel stems from the erroneous assumption that ex parte reliefs are interim and those granted after hearing the defendants are not. In Court opinion all reliefs ex parte or otherwise, granted during the pendency of the suit, are interim in their nature. Therefore, the requirement of undertaking applies to both types of reliefs.
The rule requiring the undertaking is a manifestation of the Courts anxiety to ensure that its act prejudices none. That is why an undertaking is demanded. If there were no undertaking the Courts act would certainly prejudice the Defendants.
RULES OF IDGH COURT OF JUDICATION AT BOMBAY ON THE ORIGINAL SIDE, 1980.
Rule 148 and 941-Application for arrest of property-Requirement of undertaking under Rule 941-Held, undertaking is necessary to be given whether application "as made ex parte or not.
Rule 941 may apply even where no caveat has been filed and the Court may order issue of warrant of arrest before hearing the opposing party. But it does not follow that where the Court hears the defendant before arresting the property it does not act under Rule 941. The certificate of the prothontary and Senior Master proving the absence of a caveat is intended to assure the Court that it does not order arrest of property without hearing a party who desires to oppose the application for arrest. Thus the party who has filed the caveat will have to be heard before the application for arrest is granted. Similar is the case in which no caveat is filed but the Court directs issue of a notice of the application and upon hearing the opposite party makes the order of arrest. Thus in a case heard ex parte in the absence of a caveat as indeed in the case heard ex parte in the absence of a caveat as indeed in the case in which the opposite party is heard the Court makes the order of arrest on the application before it. The application in either case is to use the words of Rule 941
"The application for the arrest of the property……….supported by affidavit."
In Court opinion therefore the application for issue of an order of arrest whether heard ex parte or upon hearing the defendant is a always an application under Rule 941.
2. The ship M.V. 'RIVER OGBESE' was arrested pursuant to the warrant of arrest dated 27th May, 1989. The arrest was 'confirmed" by the order dated 30th June, 1989 made on the plaintiffs ' Notice of Motion No. 958 of 1989. This Notice of Motion by the defendant No. 3 is for an order of release of the ship.
3. The Bank of Maharashtra have instituted this suit for a decree compelling the defendants to deliver the consignment in accordance with the contract of carriage. The suit was instituted on 10th March, 1989. The plaintiffs filed application on 10th March, 1989, for arrest of the ship. It was accompanied by an affidavit in support of the order of arrest. The draft order or arrest was also placed in the proceedings. The plaintiffs did not press the application for arrest of the ship. On 10th March, 1989, an ad-interim order was passed in accordance with the minutes presented by the parties. No order of arrest was made. Nothing happened until 27th May, 1989, when the suit was brought before Kenia, J., by the Defendant No. 3 with a prayer that the Defendant No. 3 be relieved of the undertaking to keep the vessel in Indian waters at Magdalla, near Surat. The plaintiffs and Advocates were absent. Naturally, the plaintiffs did not on that day, apply for having the ship arrested. Kenia, J., ordered that the application of the Defendant No. 3 for being relieved from the undertaking be postponed until all the parties were heard. Nevertheless, the Court on its own, ordered that the ship be arrested. The order reads:-
"I do order that upon the plaintiffs giving the undertaking in writing to the Admiralty Registrar of this Honble Court to pay such sum by way of damages as this Honble Court may award as compensation in the event of the Defendants and/or any party affected sustaining prejudice by this Order. The Admiralty Registrar or this Honble Court to issue a Warrant of Arrest to the Defendant ship/vessel "M.V. River Ogbese'.
Pursuant to this order, a warrant was issued. The order of arrest directs the plaintiffs to give a written undertaking to the Court, Eventually, the warrant was executed and the ship arrested.
4. On 13th April, 1989 the plaintiffs took out Notice of Motion No. 958 of 1989 and prayed that the vessel be arrested. This Notice of Motion was fully heard and disposed off by an elaborate speaking order dated 30th June, 1989. An order of arrest was made in this Notice of Motion too. The judgment records that the order of arrest made on 27th May, 1989, was not only in Admiralty Suit No. 3 of 1989 but also in this suit. In the words of Kenia, J. :---
"I noticed that the Advocates on behalf of the plaintiffs in Admiralty Suit No. 4 of 1989 were not present before me and as such I passed the Order in both the suits so that at least the plaintiff in Admiralty Suit No. 3 of 1989 who was represented before me, would be able to obtain the order and if possible, have the same executed."
Thus, the order dated 27th May, 1989 was made without an application by the plaintiffs.
5. In this Notice of Motion, the defendant No. 3 seeks to have the arrest made pursuant to both the orders, viz. 27th May, 1989 and 30th June, 1989, cancelled or revoked. The only ground urged is that the plaintiffs have not given the undertaking in writing as required by rule 941 of the rules of the High Court of Judicature at Bombay of the original side. The plaintiffs oppose the application on two grounds :---
(i) Rule 941 requires "the party applying under this rule" to give the undertaking in writing. Since the plaintiffs were not the party who applied for arrest on 27th May, 1989, they are not under an obligation to give the undertaking required by rule 941.
(ii) Rule 941, which requires a party applying for arrest to give an undertaking, applies only where an ex parte application for arrest is made. Where the Court, upon hearing both
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