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2018 Supreme(Bom) 2329
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
K.R. Shriram, J.
Mv Amoy Fortune - Appellant
Versus
Mv Amoy Fortune - Respondent
Commercial Notice Of Motion No. 199 of 2017 and Commercial Admiralty Suit No. 223 of 2017
Decided On : 04-06-2018
V.K. Ramabhadran, Adv., Bulbul Singh Rajpurohit, Adv., Prashant Pratap, Adv., Ruchir Goenka, Adv., Nishant Shetty, Adv.
Headnote:
Seeking a decree against defendant vessel - Defendant furnished bail - Applicant submitted as under : 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 - Plea simply is that plaintiff supplied bunkers to the defendant vessel 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 - Pleaded case of plaintiff, as set out in the plaint and documents annexed to plaint – Held, reading of plaint and documents produced by plaintiff and the judgment of this Court - 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. Notice of Motion made absolute in terms of prayer clause (a), which reads as under: To vacate and/or set aside the ex parte order of arrest passed in the present suit and return the security furnished by applicant/original defendant along with interest accrued thereon. Costs: One of factors that the Court may consider is the suppression of the Letter of Guarantee issued by Force Shipping to plaintiff as well as the settled legal position following the judgment which ought to have been known to plaintiff as the judgment was delivered whereas the Suit was filed only - Costs should be such as are a deterrent to parties who embark on speculative litigation such as this. Hence, plaintiff is directed to pay cost in the sum of Rs.5 lakhs to defendant - Notice of Motion accordingly disposed.
JUDGMENT
K.R.Shriram, J -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 SCCOnlineBom 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 .
(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 SCCOnlineSC 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 plaintiff that the invoice was at any time sent to the owners of defendant vessel.
(vii) Acco
