Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Bom) 10

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.P. COLABAWALLA, J.
Angre Port Private Ltd – Applicant
Versus
TAG 15 (IMO. 9705550) & Anr. – Defendant
INTERIM APPLICATION(L) NO. 112 OF 2021 and COMMERCIAL ADMIRALTY SUIT(L) NO. 4 OF 2020
Decided on : 03-01-2022

Advocates:
Advocate Appeared:
For the Appellant : Mr.Prathamesh Kamat a/w Pooja Tidke, Krushi Barfiwala, Ryan Menedes i/b Parinam Law Associates
For the Respondent: Mr. Amir Arsiwala, Mr. Dhrupad Vaghani, Ms. Naveli Reshamwalla, Mr. Ajiz M.K., Farzeen Pardiwalla, Nidhi Shah i/b Economic Law Practices

Point of Law: Penal Berth Hire charges are not a penalty that would be required to be proved by the Plaintiff before it can seek to recover these charges.

Headnote:
Code of Civil Procedure, 1908 - Order XIII-A read with Order XII Rule 6-seeking a summary judgment against 1st Defendant Vessel – liquidation-seeking sale of the 1st Defendant Vessel-the bar contained in Section 33(5) of the IBC, 2016 -Principles of res judicata-Plaintiff, having already filed its claim before Defendant No.2 (the Liquidator of Tag Offshore Ltd), was not entitled to file and prosecute the present suit as the amounts claimed before the Liquidator as well as in the present suit arose from the same cause of action.
Finding of the Court:
Where a liquidated amount is stated to be payable by way of damages, the same can only be payable “if it is a genuine pre-estimate of damages fixed by both parties and found to be such by the court”. The Tariff Booklet does not contain anything to suggest that “Penal Berth Hire” is a genuine pre-estimate of damages fixed by both parties. The Plaintiff would therefore be required to prove the same as per law. On the other hand, the Tariff Booklet uses the phrase “Penal” to describe this amount. It is submitted that the Tariff Booklet is solely prepared by the Plaintiff and the Defendants have no negotiating power. Therefore, the rule of contra proferentem would apply and this Court ought to be inclined towards interpreting Cl. III of Section A of the Tariff Booklet as a clause stipulating a penalty. In such a case, Mr Arsiwala submitted that the Plaintiff would have to prove the amount, and would not be entitled to summary judgment under Order XIII-A of the CPC - claim towards Salvage operations is not granted at this stage and will have to be proved at the trial of the suit. I am also not inclined to grant any interest for the period prior to 18th December 2020, or legal costs, at this stage as there is no proper breakup or substantiation supplied for the same. The Plaintiff shall, along with their claim for Salvage operations, also be entitled to agitate their claim for interest prior to 18th December 2020, and legal costs, at the trial of the suit.
Result: Interim Application is disposed of

JUDGMENT :

1. The above Interim Application is filed under the provisions of Order XIII-A read with Order XII Rule 6 of the Code of Civil Procedure, 1908 (for short the “CPC”) seeking a summary judgment against the 1st Defendant Vessel in the sum of Rs.9,37,19,098/- together with interest @ 18% p.a. from 18th December, 2020 till payment and/or realization plus poundage. The basic premise on which the aforesaid relief is sought is that the Defendants have not only admitted/confirmed the dues of the Applicant/Plaintiff but in any event the claim of the Applicant/Plaintiff is really undisputed, and the Defendants have no real prospect of successfully defending the claim of the Applicant/Plaintiff. It is in these circumstances that a summary judgment is sought against the 1st Defendant Vessel. For the sake of convenience, I shall refer to the parties as they are arrayed in the suit.

2. The above suit is filed invoking the Admiralty Jurisdiction of this Court inter alia seeking a judgment and decree against the 1st Defendant Vessel – Tag-15 (IMO. 9705550) in the sum of Rs.9,37,19,098/- as per the particulars of claim together with further interest @ 18% p.a. from 18th December, 2020 till payment and/or realization, plus poundage. For the sake of convenience, Mr. Kamat, the learned counsel appearing on behalf of the Plaintiff, has tendered a chart indicating the breakup of the Plaintiff’s claim. The said breakup is as under:

	Heads of Claim	1st period 13/2/2019 to 15/1/2020 (Till the filing of Suit)	2nd Period 16/1/2020 to 29/10/2020 (Till sale of Vessel)	3rd Period 30/10/2020 to 15/12/2020	Total (in Rs.)
I.	Port charges	Rs.10,01,000/-	Rs.7,28,728/-		17,29,728/-
II.	Berth Hire Charges	Rs.1,18,65,000/-	Rs.1,05,98,700/-		2,24,63,700/-
III.	Penal Berth Hire Charges	Rs.1,18,65,000/-	Rs.1,05,98,700/-		2,24,63,700/-
IV.	Salvage	Rs.1,85,00,000/-			1,85,00,000/-
V.	Mooring Crew		Rs.37,800/-		Rs.37,800/-
VI	GST	Rs.77,81,580/-	Rs.39,53,508/-		1,17,35,088/-
VII.	Interest	Rs.43,63,125/-	Rs.88,91,660/-	Rs.18,94,296/-	1,51,49,082/-
VIII.	Legal Costs				16,40,000/-
				GRAND TOTAL:	9,37,19,098/-

3. The suit as originally filed was only against the 1st Defendant Vessel and in fact the decree/judgment that is sought in the above Interim Application is also against the 1st Defendant Vessel only. Since the owners of the 1st Defendant Vessel (Tag Offshore Ltd.) went into liquidation, one Mr. Sudip Bhattacharya was appointed as the Liquidator of Tag Offshore Ltd. He was thereafter brought on record as Defendant No.2, pursuant to an order passed by this Court on 29th January, 2020.

4. The brief facts giving rise to the present controversy are this. On 13th February 2019, the 1st Defendant Vessel entered the Plaintiff’s Port and started occupying berth space. The Plaintiff supplied the necessary berthing charges (as per its Tariff Booklet) to the said Vessel and thereafter raised invoices from time to time.

5. On 4th March 2019, one EXIM Bank Ltd, a secured creditor of Tag Offshore Ltd., (the owner of the 1st Defendant Vessel), invoked the Admiralty jurisdiction of this Court by filing Commercial Admiralty Suit (L) No. 15 of 2019 against the 1st Defendant Vessel and obtained an order of arrest. The said Vessel continued under arrest and day by day was incurring berthing charges and port dues (in addition to other dues and charges) as the same was occupying the berth at the Plaintiff's port.

6. On 24th April 2019, insolvency proceedings were initiated against Tag Offshore Ltd. (owners of the 1st Defendant Vessel) by one R.H. Petroleum Ltd. under section 9 of the Insolvency and Bankruptcy Code, 2016 (for short the “IBC, 2016”). Pursuant thereto, one Mr. Pramod Mulgund was a

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2022 Supreme(Bom) 10

IN THE HIGH COURT OF JUDICATURE AT BOMBAYB.P. COLABAWALLA, J.Angre Port Private Ltd – ApplicantVersusTAG 15 (IMO. 9705550) & Anr. – DefendantINTERIM APPLICATION(L) NO. 112 OF 2021 and COMMERCIAL ADMIRALTY SUIT(L) NO. 4 OF 2020Decided on : 03-01-2022

Point of Law: Penal Berth Hire charges are not a penalty that would be required to be proved by the Plaintiff before it can seek to recover these charges.

Cases Referred (6)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.P. COLABAWALLA, J.
Angre Port Private Ltd – Applicant
Versus
TAG 15 (IMO. 9705550) & Anr. – Defendant
INTERIM APPLICATION(L) NO. 112 OF 2021 and COMMERCIAL ADMIRALTY SUIT(L) NO. 4 OF 2020
Decided on : 03-01-2022