JUDGMENT :

K.R. SHRIRAM, J.

1. Since nobody was appearing for respondent, this Court appointed Mr. Prathamesh Kamat, Advocate, as Amicus Curiae. We must express our appreciation for the assistance rendered and endeavour put forth by Mr. Prathamesh Kamat, learned Amicus Curiae, for it has been of immense value in rendering the judgment.

2. This appeal impugns an order and judgment dated 8th November 2006 passed by the learned Single Judge decreeing the suit in terms of prayer clauses – (c) and (i). Prayer clauses – (c) and (i) read as under :

(c) For an order and decree in favour of the plaintiffs and against the defendants in the sum of US$ 100,798 as per the particulars of claim shown in Exhibit ‘A’ hereto with interest thereon at the rate of 30% p.a. from the date of institution of the suit till payment and/or realization.

(i) Costs of the suit may otherwise be provided for.

3. Plaintiff is a Turkish company carrying on business of supplying bunkers to various vessels. According to plaintiff, for the period between 9th October 2000 to 13th March 2001 plaintiff had supplied bunkers to defendant no.1 m.v. LIMA II on the basis of orders placed by defendant no.2, the owners of m.v. LIMA II.

4. As per the invoice raised, payment was to be made within 30 days or else plaintiff was entitled to charge interest at 30% p.a. Defendant no.2 committed default in payment and, therefore, plaintiff and defendant no.2 entered into a protocol in relation to the payment that was to be made by defendant no.2 to plaintiff. According to plaintiff, despite entering into the protocol, an amount of US$ 100,798/- remained unpaid. Plaintiff, therefore, filed Admiralty Suit No.15 of 2001 to arrest defendant no.1 vessel which was at port of Kandla. The order of arrest was made on 17th May 2001, which was served upon the Port and Customs Authorities. So also upon agent of defendant no.1 vessel. The warrant of arrest could not be served on Master of m.v. LIMA II because she was in stream in the outer anchorage. m.v. LIMA II jumped arrest and escaped from the port of Kandla.

5. Later plaintiff got information that a vessel by the name m.v. LIMA I, which according to plaintiff was owned by defendant no.2, was at the port of Calcutta and, therefore, plaintiff moved a Notice of Motion bearing No.1970 of 2001 before the Admiralty Court. By an ad-interim order dated 14th August 2001 m.v. LIMA I was restrained from leaving the port of Calcutta. The notice of motion was finally disposed by an order dated 31st October 2001 confirming the ad-interim order. The Court clarified that on furnishing of security to the satisfaction of the Prothonotary and Senior Master, the said interim order shall cease to operate.

6. Defendant no.3, the present appellant, furnished security in terms of the orders of the Court while disposing the Notice of Motion No.1970 of 2001 on 31st October 2001. As a result, m.v. LIMA I was allowed to sail. Defendant no.3, i.e., appellant, thereafter, took out Notice of Motion No.529 of 2002 seeking leave of the Court to intervene in the suit. It was appellant’s case that it was an interested party because it had purchased the vessel from Mercury Shipholding Inc. (Mercury) of London which had purchased the vessel from defendant no.2. It had thereafter, sold the vessel to one Jain Udyog for demolition and Jain Udyog had asked appellant to have the vessel m.v. LIMA I released from various legal proceedings.

The said notice of motion was allowed and plaintiff was directed to join appellant as defendant no.3.

No written statement has been filed by defendant no.1 or defendant no.2. Only appellant as defendant no.3 filed written statement. It was appellant’s case that :

(a) m.v. LIMA I is not the sister ship of m.v. LIMA II either at the time of filing the suit or at the time of grant of arrest (injunction) of m.v. LIMA I, i.e., 31st October 2001. m.v. LIMA I was sold by original defendant no.2 to Mercury under a Bill of Sale dated 10th April 2001 and was flying th