JUDGMENT - D.K. DESHMUKH, J.:---This Notice of Motion has been taken out by the first defendant for rejection of the plaint, as the plaint does not disclose any cause of action against the first defendant or its owner.

2. The facts that are material and relevant for the purpose of deciding this Notice of Motion are, according to the averments in the plaint, the plaintiff is the partnership firm carrying on business in India. The first defendant is a foreign flag vessel flying the flag of Malaysia. It is further averred that on the basis of two communications dated 22nd July, 1999 and 29th July, 1999 addressed by one M/s. North End Oil (Asia) Pvt. Ltd., to the Plaintiffs, the plaintiffs were called upon to effect supply of 80 M.T. diesel oil/bunkers and 10 M.T. diesel oil/bunkers to the first defendant vessel. The port of delivery was specified as Mumbai and the delivery date was 23rd July as regards 80 M.T. diesel oil/bunkers and 29th to 30th July, 1999 as regards the 10 M.T. diesel oil/bunkers respectively. It is further averred on 24th July, 1999, while the vessel was at Bombay, in berth, 92.394 M.T. diesel oil/bunkers were supplied to the first defendant vessel on the basis of the instructions received by the plaintiff from M/s. North End Oil Pvt. Ltd. The receipt of the oil was acknowledged by the Chief Engineer of the first defendant vessel. According to the averments in the plaint, the plaintiffs drew their invoices upon the said M/s. North End Oil Ltd. It is further averred that in the invoices the first defendant vessel was shown as a consignee. According to the averments in the plaint, although the oil was supplied to the first defendant, on the basis of the order placed by M/s. North End Oil Pvt. Ltd. and the invoices were drawn accordingly. According to the plaintiffs, the receipt of the oil/bunkers by the first defendant vessel is without any qualification as regards the quality, quantity and the price of the same and therefore, the first defendant vessel is liable to the plaintiffs for the value thereof. It is further averred that as the plaintiffs did not receive any payment, a communication dated 4th September, 1999 was addressed to M/s. North End Oil Pvt. Ltd. calling upon them to make payment of the price of the oil-bunkers supplied to the first defendant. As there was no response from them, further communications were addressed demanding the payment. On inquiries being made, the plaintiffs have stated in the plaint that they have come to know that the Administrative Receiver has been appointed on M/s. North End Oil Pvt. Ltd. The plaintiffs have further stated that they have also lodged their claim against M/s. North End Oil Pvt. Ltd. with the Administrative Receiver in the sum of US $ 32,563. According to the plaintiffs presently, when the suit was filed the vessel was at Bombay Port and therefore as the plaintiffs have maritime lien over the vessel and therefore for enforcement of that lien and for recovery of the price of the oil supplied to the first defendant this suit was filed. It appears that this Court by an ad interim order had arrested the vessel, however, subsequently security has been furnished by the defendant/vessel and therefore the vessel has been released.

3. By this Notice of Motion, the first defendant contends that the plaint is liable to be rejected, because the plaint does not disclose any cause of action against the first defendant/vessel. According to the defendant, an order for supply of the oil bunkers was placed with the plaintiffs by M/s. North End Oil Pvt. Ltd. The communications, which have been placed on record by the plaintiffs dated 22nd July, 1999 and 29th July, 1999 clearly show that buyer of the oil/bunkers was M/s. North End Oil Pvt. Ltd., the seller was the plaintiffs. According to the first defendant, they had entered into the contract with M/s. North End Oil Pvt. Ltd. for supply of oil/bunkers to their vessel i.e. the first defendant. In its terms M/s. North End Oil Pvt.

Click Here to Read the rest of this document