Back
1999 Supreme(Bom) 148
IN THE HIGH COURT OF BOMBAY
(A V.A.J.)
D.G. Deshpande, J.
North End Oil Limited..... Plaintiffs.
Versus
m.v. "Kim An" another ..... Defendants.
Notice of Motion No. 3424 of 1998 in Admiralty Suit No. 93 of 1998, decided on 25-2-1999.
Advocates appeared :
G.A. Rebello with E.D. Marker i/by Ruben Fernandes, for the applicant.
J. Dwarkadas with Rahul Narichania i/by Mulla Mulla, for the plaintiffs.
Headnote:Section 5-Warrant of arrest of vessel-Pre-requisities-Party moving for arrest must prove prima facie that res was in existence on date of arrest and not demolished as contended by defendant.-From the all these discussions regarding res and action in rem it is clear that when the plaintiff files for an action in rem and arrest of vestel, he must prima facie prove that the res was in existence on the date of its arrest. If the defendant denies the existence of res and contends that res was demolished, the burden is still on the plaintiff to prove that on the date of arrest the res was intact in existence and not demolished to such an extent so as to get converted into goods.
Admiralty Suit for recovery of 50,000 US Dollars in respect of supplies-Arrest order of vessel-Purchaser of vessel seeking vacating of arrest on the ground that he had purchased the vessel for demolition and the same had been substantially demolished and was not navigable On the date of arrest the vessel was not used in navigation and could not have been so used-It was hence, not liable to be arrested-Plaintiffs failed to prove that on the date of arrest vessel was in existence-Order of arrest vacated unconditionally-Plaintiff must prima facie prove in an action in rem for arrest of vessel that it was in existence on the date of arrest.
Merchant Shipping Act, 1958
Section 3(55)-Vessel Meaning and its existence-Vessel used in navigation-Navigability is dominant factor-Depending not only mechanical navigability but also legal navigability-Suit for recovery of money-Maritime liens against vessel-Vessel imported for demolition-Order for arrest of vessel - Validity-Held, when vessel not in existence on date of arrest as same was imported for destruction and not navigable-Order for arrest of vessel not valid.- The ship has been defined under the Admiralty Court Act, 1861 as ship shall include any description of vessel used in navigation not propelled by oars and the expression vessel has been defined under Section 3(55) of the Merchant Shipping Act, 1958 as vessel includes any ship boat, sailing vessel, or other description of vessel used in navigation. If both these definitions are considered, navigability of the ship is a dominant factor in deciding whether it is a ship or vessel. The navigability of the vessel or ship is dependent not only on the mechanical navigability but also legal navigability because whether the vessel can be legally put to use for navigation is an important question if this aspect of legal navigability is considered and if the case of the applicant is accepted that he had imported vessel for demolition that he had completed all the legal formalities as stated above and obtained demolition permission on 27.10.1998 then it is clear that on the date of the order of the Court regarding arrest of the vessel, the same was not navigable because of having purchased the vessel for destruction. The applicant could not have found the vessel fit for navigation.
2. This motion is taken out by the applicant in the following circumstances.
The present suit was filed on 3-11-1998 for recovering a sum of US Dollars 50,000/- and odd together with interest etc. The arrest order was passed by this Court on 3-11-1998 i.e. on the same day of filing of the suit. In the Judge's Order that was passed by this Court for arrest option was given to the defendants to furnish bank guarantee to the extent of the amount claimed in the suit. But according to the applicant, the defendants vessel was purchased by him for the purpose of ship breaking much prior to the order of arrest and before the service of arrest warrant on 5-11-1998 and since demolition activities came to stand still he was required to furnish security under compulsion. According to the applicant, beaching of the vessel was done on 16-10-1998 and permission for demolition was granted on 27-10-1998. Demolition operation started on or from the same date i.e. from 27-10-1998 and by 5-11-1998 demolition was carried out to the major extent. But apart from that once the vessel was purchased for breaking and demolition, it was no longer navigable vessel, and therefore, same could not have been arrested in the present suit. It was also contended that the applicant has complied all the statutory requirements and duties in that regard. Reliance was placed on the judgments of Justice Radhakrishnan and Justice Rane in support of the contention that a vessel purchased for demolition could not be considered as navigable vessel and hence according to the applicant, his motion is required to be allowed and order of arrest is liable to be set aside.
3. On the other hand it was contended by Mr. Dwarkadas Counsel for the plaintiffs that the claim of the plaintiffs was in respect of supplies of necessities and the change of ownership of the vessel did not affect the claim of the plaintiffs. Reliance was placed by him on justice Dhanuka's judgment reported in A.I.R. 1995 Bom. 281 (Sigma Coatings BV v. m.v. "Agios Nikolaos). It was further contended by him that the applicant had nothing with him to show that by 5-11-1998 the vessel was demolished to such an extent that it seems to be navigable or the identity of the vessel was lost. He also contended that even if it is accepted that breaking of ship started on 27-10-1998, the ship breaking could not have proceeded much within short span of nine days up to 5-11-1998. He further contended that the applicant has not come with necessary proof regarding demolition and no affidavit of photographer was filed. Further it was contended by him that once there is serious dispute regarding extent of demolition, the matter was required to be decided only after by recording evidence of the parties. He also contended that whether the vessel seems to be a vessel and was converted into goods could not be decided at this juncture. He also contended that the plaintiffs had maritime liens which did not seem to exist on account of change of ownership. Mr. Dwarkadas also placed reliance upon certain portion of Book "Maritime Liens" by Thomas published by Steven Sons in 1980.
4. So far as case of the applicant regarding purchase of vessel for the purpose of demolition is concerned, same is required to be accepted even at this stage. The documents filed by the applicant in the compilation strongly support this case. These documents are in the form of Delivery of defendants vessel to the applicant by a letter dated 12-10-1998 accompanied with the details of sale of the same date between the applicant and owners of the vessel; undertaking given by the owners that delivery was free from all encumbrances, maritime liens, mortgage and any other debts. These are preceded by Memorandum of agreement dated 12-10-1998 between the owners and the applicant.
