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2018 Supreme(Bom) 693
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
K.R. SHRIRAM, J.
Praxis Energy Agents SA – Applicant
Versus
M.T. Pratibha Neera – Defendant
Chamber Summons No.1126 of 2014 In Admiralty Suit No.6 of 2013
Decided On : 04-05-2018
For the Applicant : Mr. Bimal Rajasekhar i/b. Mr. Ashwin Shanker
For the Defendant : Mr. Prathamesh Kamat a/w. Ms. Sapana Rachure
Mr. Rahul Narichania, senior advocate, Mr. V.K. Ramabhadran, senior advocate and Mr. Prashant S. Pratap, senior advocate, Amicus Curiae present.
Headnote:
Constitution Of India,1950 - Article 3 (1) - Civil Procedure Code,1908 - Order 1 - Rule 10 - Claim from sale proceeds - Shipping Company Limited Plaintiff has filed this admiralty suit against defendant vessel for enforcement of plaintiffs alleged maritime claim- Plaintiff seeks to as defendants sister vessels of defendant vessel/other vessels of its beneficial owner and in case where sister vessels have been sold to implead sale proceeds of those vessels as defendants- This plaintiff is seeking because according to plaintiff in event plaintiff is unable to satisfy its claim as against defendant vessel m-t- Pratibha Neera which according to plaintiffs information is heavily encumbered plaintiff will be able to look for satisfaction of its maritime claim against any sister ship of defendant vessel and/or sale proceeds of sister vessels as well as any other asset belonging to owner Shipping Company Limited (in Liquidation) proposed defendants –Held, Plaintiffs application because even assuming that there was no order of winding up plaintiff would still not be entitled to arrest or proceed against other sister vessels and/or their sale proceeds having already obtained an order of arrest in respect of one of sister vessels in respect of its claim- However there is merit in submission that leave Section Companies Act is necessary before impleadment can be allowed since purpose of impleadment is to seek a decree- If a Suit cannot be commenced or proceeded with unless leave is obtained of Company Court Section of Companies Act then it is equally necessary that such leave be obtained before seeking to implead sister ships or their sale proceeds in present Suit for purpose of obtaining a decree- course does not preclude plaintiff from laying claim to sale proceeds of other vessels or other assets of owners of MT- PRATIBHA NEERA in execution of any decree that plaintiff may obtain against owners if plaintiff is unable to satisfy its claim from vessel MT- PRATIBHA NEERA and or its sale proceeds- Of course now that owner of defendant is in liquidation plaintiff may lodge its claim for shortfall with Official Liquidator of company plaintiff along with other unsecured creditors would rank paripasu- In law once company is in liquidation only such claimants would have charge over vessel who has executed warrant of arrest prior to admitting of winding up petition- Therefore submission that plaintiff would not be able to stake its claim against sale proceeds of other defendant is fallacious- Plaintiff cannot obtain decree against sister ship of offending vessel at all- Question of other creditors being prejudiced or not do not arise in as much as that has no bearing on additional defendant being - Once company goes into liquidation all properties of company including various vessels become “properties available to all” other than such claimant who has executed warrant of arrest against any vessel prior to commencement of liquidation proceedings - Order accordingly
1. This chamber summons is taken out by plaintiff seeking leave to amend the plaint as per the Schedule annexed thereto.
2. Plaintiff has filed this admiralty suit against defendant vessel – m.t. Pratibha Neera for enforcement of plaintiff's alleged maritime claim. Plaintiff seeks to implead, as defendants, the sister vessels of defendant vessel/other vessels of its beneficial owner and in the case where sister vessels have been sold, to implead the sale proceeds of those vessels as defendants. This, plaintiff is seeking because according to plaintiff, in the event plaintiff is unable to satisfy its claim as against defendant vessel m.t. Pratibha Neera, which according to plaintiff's information is heavily encumbered, plaintiff will be able to look for satisfaction of its maritime claim against any sister ship of defendant vessel and/or sale proceeds of sister vessels, as well as any other asset belonging to the owner, Pratibha Shipping Company Limited (in Liquidation). The proposed defendants are as under :
1. Sale proceeds of m.t. Pratibha Indrayani
2. Sale proceeds of m.t. Pratibha Tapi
3. Sale proceeds of m.t. Pratibha Bheema
4. m.t. Pratibha Koyna and/or its sale proceeds
5. m.t. Pratibha Chandrabhaga and/or its sale proceeds
6. m.t. Pratibha Warna and/or its sale proceeds
7. Sale proceeds of m.t. Pratibha Cauvery
8. Pratibha Shipping Company Limited, represented by the Official Liquidator, a company incorporated under the Companies Act 1956, having its office at 1201/1202, Arcadia, 12th Floor, NCPA Road, Nariman Point, Mumbai – 400 021.
Perhaps the vessels at serial nos. 4, 5 and 6 may have been sold after filing of this chamber summons.
3. In normal circumstances a new party could be added under the provisions of Order 1 Rule 10 of the Code of Civil Procedure (CPC) provided the proposed defendant is a proper and necessary party. Here is the case where plaintiff is not seeking to add a third party but the assets of the owner of defendant no.1 vessel describing each assets, viz., ship as defendant and Liquidator of the owner of defendant. As this is the first time such an application is being considered and there is nobody appearing for defendants, except through Official Liquidator, the Court appointed Mr. R.V. Narichania, senior advocate, Mr. V.K. Ramabhadran, senior advocate and Mr. Prashant S. Pratap, senior advocate, who all regularly practice in the Admiralty Court and who specialise in that field and as they were present in Court on the first date of hearing, as Amicus Curiae. Valuable contribution of Mr. R.V. Narichania, senior advocate, Mr. V.K. Ramabhadran, senior advocate and Mr. Prashant S. Pratap, senior advocate is hereby acknowledged.
4. It is plaintiff's case that :
(a) if plaintiff had a cause of action against proposed defendants and those defendants could have been added at the time the suit was filed, then plaintiff should be permitted to add those parties later as well;
(b) it is settled law that the provisions under Order 1 Rule 10 CPC speaks about judicial discretion of the Court to strike off or add the parties at any stage of the suit to settle all questions involved. The expression “to settle all questions involved” has to be given a liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subject-matter thereof and the Court has the power to secure the said result with judicious discretion to add parties, including third parties;
(c) plaintiff is no doubt dominus litus and is not bound to sue every possible adverse claimant in the same suit. He may choose to implead only those persons as defendants against whom he wishes to proceed though, under Order 1 Rule 3, to avoid multiplicity of suits and needless expenses, all persons against whom the right to relief is alleged to exist may be joined as defendants;
(d) plaintiff has a cause of action against, and can array, all sister vessels under Order 1 Rule 3 of the CPC. It usually, however, chooses not to array all the sist
