K.R. SHRIRAM, J.

1. The issue that is raised in this Notice of Motion taken out on behalf of the applicant is whether a plaintiff could maintain an action only for recovery of pure economic loss independent of physical damage?

The case of the applicant simply put is that economic loss independent of physical damage is not recoverable on the ground that the applicant will be under no duty of care to the plaintiff and the loss will not be foreseeable and as a policy courts should not allow such claims. To decide this issue we have to see what the plaintiff is claiming in this suit.

2. Before I briefly narrate the plaintiff's claim in the suit, let us look at the particulars of claim annexed to the plaint.

EXHIBIT “R”

PARTICULARS OF PLAINTIFF'S CLAIM

Description Amount

1. Production Loss Rs. 12,28,72,520.00

2. Expenditure incurred in connection with salvage of the Defendant Vessel and legal proceedings in the High Court and Supreme Court Rs. 54,28,001.00

3. Total Rs. 12,83,00,521.00

4. Exposure for demurrage claims on account of detention of Vessels US $ 453,889.00

Total Claim = Rs.12,83,00,521+US $ 453,889.00

(Rupees Twelve Crores Eighty Three Lacs Five Hundred and Twenty One and US Dollars Four Lac Fifty Three Thousand Eight Hundred and Eighty Nine Only)

3. As regards claim no.2 and claim no.3, Mr. Dhond, the counsel for the plaintiff stated that the plaintiff is not pressing for the same and to that extent, security furnished by the applicant/defendant for release of the defendant vessel could be returned. As regards claim no.2, he said the plaintiff has not incurred any salvage cost and as regards claim no.3, he said they have not received any claim for demurrage. The claim in the suit therefore, will be restricted to production loss claim of Rs. 12,28,72,520.00.

4. The plaintiff carry on business of manufacture and sale of P.V.C. resin. The plaintiff have a Captive Jetty for receiving raw material required to manufacture PVC resin in its plant at Ranpur, Ratnagiri. This jetty is in the area called Pawas Bay and is closed during monsoon from mid- May until September/October depending on the weather. At the relevant period, the jetty was declared open by the Port Officer of Maharashtra Maritime Board on 1st September, 2006.

5. On 13th September, 2006, less than two weeks of the jetty being declared open, the defendant vessel M.V. Kew Bridge arrived at Pawas Bay for discharge of 8798 M.T. of LPG on account of Bharat Petroleum Corporation Limited (BPCL) at the Captive Jetty. Though it was a private Captive Jetty of the plaintiff, it had allowed BPCL to use the jetty. Prior to the arrival of the defendant vessel, the only other vessel that had berthed at the captive jetty after it was declared open post monsoon, was a smaller vessel which was not carrying LPG.

6. On 14th September, 2006, Pilot boarded the defendant vessel. The services of pilot are provided by the plaintiff. In the process of berthing with the assistance of two tugs of maximum Bollard Pull of 10 tons, as per the documents annexed to the plaint and relied upon by the plaintiff, it seems, due to a sudden squall, rain and swell, the defendant vessel drifted away from the jetty and could not be controlled by the two tugs. The vessel drifted in the area and grounded on soft sand and mud at a distance, admittedly of 1.5 / 1.6 k.m. from the captive jetty. Though elsewhere, prior to filing this suit, the plaintiff had also taken the stand that the grounding was on account of bad weather, in the plaint, the plaintiff allege it was due to inadequacies and/or negligence of the defendant vessel and its master, and crew, the defendant vessel grounded. There is no explanation in the plaint for this change of stance and it is an averment with no details. The vessel was finally removed from its grounded position late in the night on 9th October, 2006 and she was safely navigated out from Pawas Bay.

7. In the meanwhile, by an order dated 16th September, 2006, the Port Officer, Ratnagir