. The defendants have filed this notice of motion seeking the following reliefs:-

(a) That the order dated 3rd September 2007 be vacated and/or set aside;

(b) The plaintiff be directed to deposit in this Hon’ble Court or furnish security in the sum of Rs.32,80,000.00 being the losses or damages suffered by the defendants due to order dated 3rd September 2007.

(c) Ad-interim reliefs in terms of prayer clauses (a) and (b) above;

2. Plaintiff has approached this Court by filing the above Admiralty Suit and the relief claimed therein is that the first defendant vessel be arrested by a Warrant of Arrest of this Court and, thereafter, the same be sold through Sheriff of Mumbai by orders and directions of this Court so also the sale proceeds be appropriated to the satisfaction of plaintiff’s claim in the suit. The decree in favour of plaintiff and against the defendants jointly and severally in the sum of Rs.98,23,397 has been claimed. The plaint is lodged in this Court on 3rd September 2007. It is pointed out that on 3rd September 2007, an order of arrest of first defendant vessel has been made by this Court.

3. The grievance is that this Court could not have passed the order of arrest of first defendant vessel as it does not have the jurisdiction to pass any such orders against the defendants to this suit.

4. Mr.Narichania, learned Counsel appearing for defendants submits that the order of arrest is vitiated on three grounds. Firstly, this Court does not have jurisdiction to entertain and try the suit. Secondly, first defendant vessel was not seaworthy atleast on 13th August 2007. Thirdly, on account of stowage permission not being granted by the Mercantile Marine Department, the contract stood frustrated. Finally, for the claim and quantum specified in the suit, it is clear that the defendants are not liable. He submits that the defendants have demanded refund of sum of Rs.40 lakhs advanced by them for towing the barge. Far from the defendants being liable to pay any sum, the plaintiffs by their conduct disentitled themselves from claiming any equitable and discretionary reliefs. The claim is highly inflated and no decree can be passed in favour of plaintiffs. 5. He submits that the order of arrest has been passed on 3rd September 2007. That was an ex parte order.

5. He submits that pursuant to the order of arrest, plaintiffs addressed a letter dated 6th September 2006 informing defendants of the substitution of Tug from Ground I to Revati which was replied on 7th September 2007. Thereafter, a fax was received which was also replied. The order of arrest has resulted in serious loss and prejudice being caused to the defendants inasmuch as, it is suffering a loss of Rs.80,000/- per day and the plaintiffs are liable to compensate the defendants for this loss. The loss is calculated at Rs.32,80,000/- and that is how nothing is liable to be deposited and/or paid to the plaintiffs by the defendants.

6. For appreciating submissions of Mr.Narichania on the issue of jurisdiction, it would be necessary to refer to the averments in the plaint. Plaintiff is an Indian company. It is the owner of a tug m.v.CROWN -I, which is Anchore Handling Tug cum supply vessel. Defendant No.1 is a Dumb Barge with an 150 Ton Crane Sea fastened on her Deck. Defendant No.1 is a vessel registered at Mumbai and presently lying in the port of Mumbai. Second defendant is the owner of first defendant vessel.

7. The claim of plaintiff arises under a Towcon Agreement dated 31st July 2007 pursuant to which the plaintiff’s Tug was hired by defendant No.2 for towing first defendant vessel from Mumbai to Kakinada.

8. The plaint refers to clauses in the agreement and proceeds to allege that defendant No.1 as hirer was required to arrange on its cost and provide to the Tug owner all necessary licenses, authorisations and permits required by the Tug and Tow to undertake and complete the contractual voyage. One such permission is that of Mercantile Marine Departm