Bombay High Court
Ashok Arya
Versus
M.V."Kapitan Mitsos" and others
Decided On:

Headnote:Section 64-Anchorage charge-Priority of claim of port trust-Port Trust can claim priority to respect of anchorage charges during sale of vessel arrested by Port Trust and surrendered to sheriff as representative of Admiralty Court.

       The important thing to note is the principle that the lien given by statute to a dock or harbour authority cannot be extinguished by Court unless it be done with the authoritys express or implied consent. It destroys the argument that the order of the learned judge dated 21st October, 1985 on the Sheriffs report dated 15th October, 1985 had the effect of extinguishing the B. P. T. s lien on the said vessel and that the B. P. T. had acquiesced therein by not seeking its variation.

       The B. P. T. was honour bound not to contend with the Sheriff but to surrender the said vessel to him as the representative of the Court and to let him sell her under the Courts directions. It was then the duty of the Court to protect the interests of the B. P. T. and to put it in the same position as if it had sold the said vessel itself under its powers under the Act. In permitting the said vessel to be sold by the Sheriff, the B. P. T. did not forgo its lien thereon or its right to have the sale proceeds applied towards the satisfaction of its dues in priority to all other claims thereon.

       The B. P. T. in acting as it did, followed as established Admiralty practice which is of immense advantage to all those who have claims upon a vessel, for it ensures a sale thereof, at a fair price, by and under the direction of the Admiralty Court.

       The B. P. T. is entitled to be paid the amount of its claim, being Rs. 9, 10, 031, 25 out of the sale proceeds of the said vessel lying in Court in priority to any other claim thereto. If the sale proceeds have been invested, the B. P. T. is entitled to the payment of the proportionate accrued interest.

       MAJOR PORT TRUSTS ACT, 1963

       Sections 42 (e) and 52- Amendment containing scale of rates and conditions in which rates become applicable o vessel, sanctioned and gazetted by Central Government-Effect of-it cannot be said that conditions for applicability were not sanctioned and gazetted.

       The affidavit filed on behalf of the B.P.T. in reply to the notice of motion annexes the amended Scale of Rates. It is this amendment, as is clear from the affidavit that was submitted to the Central Government for sanction was sanctioned and was gazetted. The amendment contains the scale of rates. It also contains the conditions in which the rates become applicable to a vessel. It is, therefore, a scale of rates on payment of which, and a statement of conditions under which places within the limits of the port may be used. There is, therefore, no merit in the submission that the statement of conditions had not been submitted to or sanctioned by the Central Government or published in the Official Gazette.

       For Citation : AIR 1988 Bom 329 at pp. 333, 334