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2018 Supreme(Bom) 717
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
K.R. SHRIRAM, J.
SOCAR Turkey Petrol Enerji Dagitim Sav. Ve. Tic. A.S. - Plaintiff
Vs.
MV Amoy Fortune (IMO No.9583639) - Defendant
Commercial Notice of Motion No.199 of 2017 In Commercial Admiralty Suit No.223 of 2017
Decided On : 04-06-2018
For the Plaintiff :Mr. V.K. Ramabhadran, senior advocate a/w. Ms. Bulbul Singh-Rajpurohit i/b. Crawford Bayley and Co.
For the Defendant :Mr. Prashant Pratap, senior advocate a/w. Mr. Ruchir Goenka and Mr. Nishant Shetty i/b. Bose and Mitra and Co.
Headnote:
Constitution Of India,1950 - Article 3 - Civil Procedure Code,1908 - Order 7 - Rule 11 - Claim against vessel for supply of necessaries - demanded payment from Force Shipping - Plaintiff does not have any cause of action against applicant/owner of defendant vessel and there is no plea that owner of defendant vessel is liable in respect of supply of bunkers to vessel plea simply is that plaintiff supplied bunkers defendant vessel which has used and consumed same and consequently plaintiff has a maritime claim against vessel for supply of necessaries and is entitled to an order of arrest of vessel As such plaintiff does not satisfy requirement of Article Arrest Convention and requirements for an order of arrest as exemplified by Supreme Court in case Plaintiff has an ongoing business relationship with Force Shipping for supply of bunkers to various vessels If supplies are made to vessels undertaking voyages then Force Shipping requests plaintiff to invoice them but if vessel is undertaking international voyages Force Shipping requests plaintiff to raise an invoice in name of Sentex LDX- an off Shore Company which is wholly owned by Force Shipping An order for supply of bunkers to defendant vessel at Istanbul Port was placed by Force Shipping on plaintiff on It is evident from order at Exhibit is not on behalf of defendant vessel and/or master and/or owners and/or managers and/or operators as incorrectly pleaded in paragraph it says “Our order” signifying that order is placed by Force Shipping –Held, Court have not slightest hesitation in condemning petitioner for gross abuse of process of court repeatedly and resorted to From statement of facts found in judgment of High Court it is perfectly plain that suit now pending before First Court- Bangalore- is a flagrant misuse of mercies of law in receiving plaints must remember that if on a meaningful not formal reading of plaint it is manifestly vexatious and meritless- in sense of not disclosing a clear right to sue he should exercise his power taking care to see that ground mentioned therein is fulfilled And- if clever drafting has created illusion of a cause of action- nip it in bud at first hearing by examining party searchingly CPC An activist Judge is answer to irresponsible law suits trial courts would insist imperatively on examining party at first hearing so that bogus litigation can be shot down at earliest stage court in this case will remind itself and take deterrent action if it is satisfied that litigation was inspired by vexatious motives and altogether groundless In any view- that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to parties concerned plaint and documents produced by plaintiff and judgment of this Court in MT VALOR (Supra) and MV BUNGA MAS TIGA (Supra)- it is apparent that plaintiff does not have a prima facie case for arrest of defendant vessel In fact plaintiffs case is hopelessly misconceived and cannot be considered as even reasonably arguable order of arrest is liable to be vacated and security returned as prayed for– Order accordingly
1. Plaintiff has approached this Court seeking a decree against defendant vessel as an unpaid supplier of bunkers to the defendant vessel. Pursuant to an order dated 16th March 2017, defendant vessel came to be arrested. Defendant furnished bail in the form of Bank Guarantee to secure plaintiff's claim in this suit.
2. Fortune Marine Lines Limited (applicant), as owners of defendant vessel has taken out the present notice of motion for vacating the order of arrest of defendant vessel and for return of security. It is the case of applicant that there is no privity of contract between plaintiff and applicant and no cause of action or liability in personam against applicant which is essential for maintaining an action in rem against defendant vessel.
3. Shri Pratap for applicant submitted as under :
(a) The issues that arise in this application are covered by a judgment of a Learned Single Judge of this Hon’ble Court in the case of Gulf Petrochem Energy Pvt. Ltd. vs. M.T. VALOR, 2015 SCC Online Bom 1367. The facts are more or less identical. The case of applicant herein stands on a much better footing than the case of applicant in M.T. VALOR (Supra).
(b) Plaintiff does not have any cause of action against applicant/owner of defendant vessel and there is no plea that the owner of defendant vessel is liable in respect of the supply of bunkers to the vessel. The plea simply is that plaintiff supplied bunkers to the defendant vessel (which has used and consumed the same) and consequently plaintiff has a maritime claim against the vessel for supply of necessaries and is entitled to an order of arrest of the vessel. As such plaintiff does not satisfy the requirement of Article 3(i) of the 1999 Arrest Convention and the requirements for an order of arrest as exemplified by the Supreme Court in the case of Sunil B. Naik vs. m.v. Geowave Commander, 2018 SCC Online SC 203.
(c) The pleaded case of plaintiff, as set out in the plaint and documents annexed to the plaint, is as follows :-
(i) Plaintiff has an ongoing business relationship with Force Shipping for supply of bunkers to various vessels. If supplies are made to vessels undertaking cabotage voyages then Force Shipping requests plaintiff to invoice them but if the vessel is undertaking international voyages Force Shipping requests plaintiff to raise an invoice in the name of Sentex LDX, an off Shore Company which is wholly owned by Force Shipping.
(ii) An order for supply of bunkers to defendant vessel at Istanbul Port was placed by Force Shipping on plaintiff on 21st September 2016. It is evident from the order at Exhibit B (page 23) that it is not on behalf of defendant vessel and/or master and/or owners and/or managers and/or operators as incorrectly pleaded in paragraph 4(b). In fact it says “Our order” signifying that the order is placed by Force Shipping.
(iii) There is no order confirmation issued by plaintiff.
(iv) Plaintiff supplied 1,100 mts. of bunkers to defendant vessel on 4th October 2016 and a Bunker Delivery Receipt was issued signed by the Master and/or Chief Engineer (Exhibit C page 24). This merely acknowledges receipt of the bunkers. It does not contain any term imposing liability on the owner nor is there any reference to or incorporation of plaintiff’s terms of sale for marine fuels.
(v) Invoice is raised by plaintiff on Sentex as per the arrangement with Force Shipping (a copy of the invoice is at Exhibit D page 26 of the Plaint). It is evident from the invoice that it is not addressed to defendant vessel and/or master and/or owners and/or charterers and/or managers and/or operators, contrary to the pleading in paragraph 4(d) of the plaint. It is addressed to Sentex Ltd. as per the arrangements between plaintiff and Force Shipping. Invoice too does not incorporate or make a reference to plaintiff’s terms of sale for marine fuel.
(vi) It is not the case of pl
