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Bombay High Court
D.R.DHANUKA
SIGMA COATINGS BV - Appellant
Versus
M.V.AGIOS NIKOLAOS - Respondent
Decided On : 02/08/1995
ADMIRALTY - MARITIME LIEN - RANGE OF CLAIMS - WHETHER MARITIME LIEN EXTENDS TO CLAIM FOR SUPPLY OF NECESSARIES TO SHIP - WHETHER ENFORCEABLE AGAINST VESSEL EVEN AFTER CHANGE OF OWNERSHIP - JURISDICTION OF HIGH COURTS IN INDIA - WHETHER CO-EXTENSIVE WITH JURISDICTION OF COURTS OF ADMIRALTY IN ENGLAND AS IT EXISTED ON 25-7-1890 - COLONIAL COURTS OF ADMIRALTY ACT 1890 - COLONIAL COURTS OF ADMIRALTY (INDIA) ACT 1891 - ADMIRALTY COURTS ACT 1840 - ADMIRALTY ACT 1861 - SUPREME COURT OF JUDICATURE (CONSOLIDATION) ACT 1925 - GOVERNMENT OF INDIA ACT 1915 - GOVERNMENT OF INDIA ACT 1935 - CONSTITUTION OF INDIA, ARTS. 106, 223, 225, 372.
Fact of the Case:
Plaintiffs, a company incorporated under the laws of Netherlands, filed an action in rem on the admiralty side of the Court against a foreign flat vessel and its owner for recovery of a sum of Guilders (NLG) 58,745.10 and Rs. 3,88,762.03 together with interest at the rate of 24% per annum from the date of the suit till payment. The plaintiffs also sought an order from the Court to the effect that the 1st defendant vessel along with her engines, gears, tackles, bunkers, machinery, apparel, plant, furniture, appurtenances and paraphernalia be arrested under a warrant of arrest of this Hon'ble Court. The plaintiffs made an application for interim relief seeking arrest of the 1st defendant vessel or in alternative for an appropriate order of injunction in aid of their assertion to the effect that the plaintiffs have maritime lien over the 1st defendant vessel in respect of the suit claim.
Finding of the Court:
The Court held that the plaintiffs have a maritime lien in respect of the suit claim and the said claim is enforceable against the vessel even where there is a change of ownership of the vessel. The Court further held that the range of claims giving rise to maritime liens is much wider and includes claim for supply of necessaries as to the ship.
Issues: 1. Whether maritime lien extends to claim for supply of necessaries to ship? 2. Whether maritime lien is enforceable against vessel even after change of ownership? 3. Whether jurisdiction of High Courts in India is co-extensive with jurisdiction of Courts of Admiralty in England as it existed on 25-7-1890?
Ratio Decidendi: 1. The range of claims to which maritime lien extends is not crystalised by any British statute in so many words. The question as to whether claim for supply of necessaries to a ship falls within the range of claims to which maritime lien is attached or not is seriously put in issue at the hearing of this application notwithstanding the clear observations in para.99 of the said judgment on the ground that the said observations do not constitute the 'law declared' or 'the obiter dicta' of the Supreme Court and the same are contrary to well settled judicial decisions holding the field at present in England. 2. A maritime lien is distinct from both a common law and equitable lien. It is distinct from a common law lien in that it is not dependent on possession. It may be invoked by an action against the ship, aircraft or other property, even in the hands of an inherent purchaser. 3. The jurisdiction of High Courts in India is not restricted to exercise of powers which could be exercised by the High Courts of England under the British Statutes up to the year 1890.
Final Decision: The Court passed an order for arrest of the 1st defendant vessel as prayed for by the learned counsel for the plaintiff. The Court also stayed the operation of the order for a period of four weeks from the date of the order on the condition that the 1st defendant vessel shall not sail from the Port of Bombay and the ad interim injunction granted by the Court shall continue until further orders.
2. The plaintiffs have made an application for interim relief seeking arrest of the 1st defendant vessel or in alternative for an appropriate order of injunction in aid of their assertion to the effect that the plaintiffs have maritime lien over the 1st defendant vessel in respect of the suit claim.
3. It is the plaintiffs case that during the month of July 1993, August, 1993 and Sept. 1993 the plaintiffs had supplied paints (i.e. maritime necessaries) to the 1st defendant vessel in pursuance of the orders placed by the defendants herein. The plaintiffs raised four invoices dated 2-7-1993,20-7-1993,16-8-1993 and 16-9-1993 in sum of Netherland Guilder for 2614, 2869.50, 8481.72 and 4809.72 aggregating to NLG 42,775. The plaintiffs have claimed interest on the said amount from the date of each of the above referred invoices till the date of filing of this suit and also the various amounts of costs incurred by the plaintiffs as per details set suit in para 5 of the plaint. It emerges from the annexures to the plaint that the plaintiffs have a reasonable cause of action against the defendants for recovery of the amount of the suit claim It appears that the defendant No.2 has virtually admitted its liability to pay the amount of suit claim during the course of correspondence annexed to the plaint. At this stage, the suit claim is not contested on merits as such.
4. On 9-12-1994, the plaintiffs filed this suit and made an application for order of arrest or for grant of an appropriate interim injunction after serving notice thereof on defendant No.1. By an order dated 9-12-1994, N.D. Yyas, J. passed an order of ad interim injunction restraining defendant No.1 vessel from sailing. Liberty was granted to the plaintiff to move the Court further on 15-12-1994. By an order dated 14-12-1994, the order of ad-interim injunction restraining the 1st defendant vessel from sailing was extended to 20-12-1994 till 5.00 p.m. By an order dated 19-12-1994, the said order of ad-interim injunction was further extended. By subsequent orders passed by this Court, the above referred of ad-interim injunction was extended until further order. The application for the arrest of vessel or grant of appropriate injunction is heard at length.
5. By his affidavit dated 19-12-1994, Capt. Praveshchand Premchand Diwan, the Master of the 1st defendant vessel, stated that the 1st defendant vessel was already sold to one Prudence Maritime Inc. for US $ 1,300,000/-. It is stated in the said affidavit that the transaction of sale in respect of the 1st defendant vessel was evidenced by memorandum of agreement dated 3-10-1994 and the bill of sale dated 19-10-1994. Copies of these documents were annexed to the said affidavit in reply. A note is appended to the bill of sale which reads as under:
"A purchaser of a registered British Vessel does not obtain a complete title until the Bill of Sale has been recorded at the Port of Registry of the ship and neglect of this precondition may entail serious consequences."
In this context, it was further averred in the said affidavit dated 19-12-1994 that the transfer of the 1st defendant vessel had been duly registered in the port of registry of the ship. It was not stated in this affidavit as to on what date the alleged transfer
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