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IN THE HIGH COURT OF BOMBAY
(O.O.C.J.)
S.S. Nijjar, J.
SNP Shipping Services Pvt. Ltd. others..... Plaintiffs.
Versus
World Tanker Carrier Corporation another..... Defendants.
Notice of Motion No. 1272, 1638 and 1663 of 1999 in Suit No. 2352 of 1999, decided on 10-9-1999.
Advocates appeared :
V.R. Manohar with Mrs. Usha Dahanukar and V. Subramanium i/b S. Priya, in Notice of Motion No. 1272, 1636 and 1663 of 1999, for defendant No. 1.
C.A. Sundaram with Janak Dwarkadas, Govt.A. Rebello, Z. Bharucha and Ruben Fernandas, in Notice of Motion No. 1272, 1636 and 1663 of 1999, for the plaintiffs to show cause.
Section 44-A-Since U.S.A. is not a reciprocating country as envisaged under Section 44-A of the Civil Procedure Code the judgment of New Orleans Court is not executable in India.
Order II, Rules 1 and 2provisions of Order II, Rules 1 and 2 are mandatory in nature.- The provisions of Order II, Rules 1 and 2 of the Civil Procedure Code are mandatory in nature. The term "shall" and not "may" occurs in all the rules. Thus under Order II, Rule 1, the plaintiff are duty bound to claim the entire relief. The suit has to be so framed as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Rule 2 further enjoins on the plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If the plaintiff omits to sue or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Leave of the Court has to be obtained in the earlier suit and not in the subsequent one. In the circumstances the plaint was liable to be rejected under Order VII, Rule 11 (d).
Order VI, Rule 1-It is the bounden duty of the parties to the litigation to ensure that the pleadings make a candid and fair statement of fads-The fads must not be stated in a manner to mislead the Court as to the true state of affairs. 1998 (5) SCC 310, AIR 1983 Raj 3, 1988 (3) BCR 238, 1965 (2) All ER 871, 1886-90 All ER rep. 863, 1970 (1) All ER 1094, 1966 (1) All ER 695, AIR 1977 SC 2421,1917 Kings Bench Division 486, Ref.
Order VI, Rule 16 (a) and (c)- Plaintiff challenging findings given by District Court by Louisiana U.S.A. by filing a suit in original Civil Jurisdiction of High Court at Bombay Suit filed with mala fide intention and with an intention to harass defendant-It was clear abuse of the process of the Court-Plaint liable to be rejected in view of Order VI, Rule 16 (a) and (c) at the threshold.
Order VI, Rule 16 (c)-It is a settled proposition of law that is an abuse of process to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings.
Order VII, Rule 11-Under Order VII, Rule 11 the plaint can be rejected where it does not disclose a cause of action or where the suit appears from the statement made in the plaint to be barred by any law-For the purpose of deciding that the plaint does not disclose a cause of action, the Courts generally look only at the plaint-However, there is a rider to this rule, that when the plaint is based on a document, the said document can also be looked into.
Article 215-High Court has power to reject the plaint not only under Order VI, Rule 16 but also under Article 215 of the Constitution of India.-High Court has the power to reject the plaint on the ground that it is an abuse of the process of the court not only by virtue of Order VI, Rule 16, Civil Procedure Code but also by virtue of the powers conferred on the High Court under Article 215 of the Constitution of India.
Defamation-Report of proceedings in Court- The newspaper reports are privileged if published contemporaneously-The report need not be a verbatim one.
S.S. NIJJAR, J.:---The plaintiffs have filed this suit seeking a two fold relief (a) decree in favour of the plaintiffs and against the defendants for a sum of Rs. 50 crores being the damages suffered by the plaintiffs and (b) for a declaration to the effect that plaintiffs being a company incorporated under the Companies Act, 1956 are exclusively owned and controlled by the second and third plaintiffs who are Indian Shareholders, citizens of India and are in no manner whatsoever linked, owned or controlled, legally or beneficially by the Merali family. Further declaration is sought to the effect that the legal and beneficial ownership of the vessels managed by the first plaintiffs vests with the entities/owners unconnected with the plaintiffs.
2. The plaintiffs have taken out Notice of Motion No. 1663 of 1999 for an order of injunction restraining the defendants from making any further publication or claims in the media with regard to the unseaworthiness of the vessel m.v. YA MAWLAYA or to the effect that plaintiffs being an alter ego of Merali family. On the other hand, defendants have taken out Notice of Motion No. 1638 of 1999 for striking out the plaint as being unnecessary, scandalous, frivolous and vexatious and also being an abuse of the process of Court under Order 6, Rule 16 read with section 151 of the Code of Civil Procedure and Article 215 of the Constitution of India. The defendants have also taken out Notice of Motion No. 1272 of 1999 for dismissal of the suit under Order 7, Rule 11-A of the C.P.C. as being without jurisdiction. It is prayed that the issue of jurisdiction be decided as a preliminary issue.
3. The first plaintiffs, SNP Shipping Services Pvt. Ltd., are a Private Limited Company registered under the Companies Act, 1956 having its registered office in Mumbai, hereinafter referred to as "SNP". The second and third plaintiffs are Indian citizens and carry on business in the name and style of the first plaintiff company. Second and third plaintiffs are the only Directors and shareholders and beneficial owners of the first plaintiff firm. The first defendants, World Tanker Carriers Corporation are a company registered in Monrovia, Liberia, hereinafter referred to as "WTCC". The vessel "New World" is owned by WTCC. This vessel is registered in Hongkong. It flies the flag of Hongkong, M.B. Malavia represents WTCC as their Constituted Attorney/recognised agent in Mumbai within the jurisdiction of this Court. The second defendants Company Eridania S.P.A. are a foreign company registered in Italy, hereinafter referred to as "Cereol". Birendra Trivedi represents Cereol as their Constituted Attorney/Recognised Agent in Mumbai.
4. SNP, inter alia, act as Managers of various foreign flag vessels, for which purposes, various management agreements are entered with the owners/charterers, as the case may be, of these foreign vessels. The services rendered by SNP include technical ship management, crew management, commercial management, sale/purchase of vessel, port cargo operations etc. SNP primarily supply complement of competent and licensed crew on board the vessels under their management who are duly licenced and certified under the provisions of the Indian Merchant Shipping Act, 1958. As a company incorporated under the Companies Act, 1956, SNP are also assessed to Income tax in accordance with the provisions of the Indian Income Tax Act, 1962. Thus, it is stated that SNP are an Indian Company governed under the provisions of the Indian Companies Act, 1956.
5. On 11-4-1994 SNP had entered into a management agreement with one M/s. Kara Mara Shipping Co. Ltd., hereinafter referred to as "Kara Mara", a company registered in Cyprus. Kara Mara was the owner of a vessel m.v. Ya Mawlaya, registered in Cyprus. On 20-10-94 Kara Mara sold the vessel m.v. Ya Mawlaya to Vestman Shipping Co. Ltd., a company registered in Cyprus. Kara Mara thereafter became bare boat charterers of Ya Mawlaya. Under the agreement date
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